The Western Australian Government’s Aboriginal Cultural Heritage Bill has been released to the public, with notice given the Bill will be tabled in parliament tomorrow (Wednesday).

In the Bill made public today, the right to appeal decisions to the State Administrative Tribunal has been ostensibly returned to the proposed legislation, but applies only to six categories of “reviewable” decisions – which do not include the right to appeal against a Minister of Aboriginal Affairs’ approval of an Aboriginal Cultural Heritage management plan, meaning in effect that the final say on plans remains with the Minister.

Earlier this month, Yamatji Noongar woman and Senator for Western Australia Dorinda Cox raised concerns about the right of appeal to the SAT being removed from the most recent draft of the Bill after she received a briefing. The right had been included in earlier versions of the Bill after support for it had been strongly expressed in community consultation.

Under the legislation, an Aboriginal Cultural Heritage Council will be established as “an agent of the State” endowed with “the status, immunities and privileges of the State”.

The Council will have two chairs, appointed by the Minister for Aboriginal Affairs, each of whom must be an Aboriginal person, one with the “traditional rights, interests and responsibilities in respect of women’s business” and one with the “traditional rights, interests and responsibilities in respect of men’s business”.

Between four and nine other persons will be appointed by the Minister to the Council.

The Bill states that the members must have “between them, such knowledge, skills and experience as the Minister considers appropriate to enable them to effectively perform the functions of the ACH Council under this Act”.

It also states that “as far as practicable” the Minister must ensure that the majority of the Council members are Aboriginal people.

On Tuesday Senator Cox said the Council should have 100 per cent Aboriginal representation.

Hours before the Bill was made public, the Kimberley Land Council, Kimberley Aboriginal Law and Cultural Centre and Aarnja released their joint Punturr Punturr Statement, addressed to Minister for Aboriginal Affairs Stephen Dawson, in which they also called on him to “ensure the proposed new Aboriginal Cultural Heritage Council is 100 per cent Aboriginal represented, not just a majority”.

“As discussions about Aboriginal cultural heritage reach a pivotal point, as Minister for Aboriginal Affairs, you have a once in a lifetime opportunity to change this story and protect our living, breathing culture,” they said.

“You have the opportunity to prove that you are on our side, fighting for us.”

“Your government’s proposed new Aboriginal Cultural Heritage Bill will not make the changes needed to ensure Aboriginal Cultural Heritage is protected for future generations. The proposed laws will continue to enable the ongoing destruction of Aboriginal culture. A tragedy the scale of Juukan Gorge can, and will, happen again under your proposed heritage laws.”

“The Kimberley Land Council, Kimberley Aboriginal Law and Cultural Centre, and Aarnja members have consistently voiced their opposition to the Aboriginal Cultural Heritage Bill in its current form. Now, at the AGMs of our three organisations we reaffirm this opposition and urge you to work with us to find a way forward.”

The Punturr Punturr Statement also called on the Minister to:

  • ensure the proposed legislation is formed on the basis of free prior and informed consent; ensure the final decision about impacts to Aboriginal culture and heritage rests with Aboriginal people, not industry or government;
  • legislate an appeal process to the State Administrative Tribunal to ensure that, just as occurs in other areas of the justice system, wrong decisions can be reviewed;
  • deliver adequate resourcing for PBCs and their representatives to properly engage with this new and complex legislation;
  • create an Aboriginal Cultural Heritage Bill that strengthens industry’s social license to operate; and
  • accept that meaningful engagement has not occurred

“Listen openly and implement our recommendations for improvement of this legislation so as to address our very significant concerns,” the statement said.

In September, five Aboriginal leaders – Dr Hannah McGlade, Slim Parker, Kado Muir, Dr Anne Poelina and Clayton Lewis – requested that the United Nations Committee on the Elimination of Racial Discrimination (UNCERD) review the Bill.

After the Bill was made public, Dr McGlade told National Indigenous Times:

“We are calling on the UN Committee on Race Discrimination to act urgently as the Bill will continue a pattern of violation towards Indigenous peoples and the right to land and culture. This is systemic discrimination and we need improvements made, including an independent statutory authority similar to the NT model and an appropriate merits review process.

“The Bill has since 1972 authorised widespread destruction of Aboriginal heritage lands protecting only a handful of sites. As Senator Dodson has described, this is a form of genocide against our people,” she said.

Senator Cox condemned the WA Government for “ignoring the Traditional Owners of Western Australia in their call for greater protection of their cultural heritage sites”.

“The Government claims that this Bill was co-designed in equal and genuine partnership with First Nations people, but First Nations people have not been provided with the latest version and will not have this opportunity before it is introduced into the State Parliament.

“I am greatly concerned that First Nations languages have not been used to communicate aspects of the Bill to communities, or caters for information sharing in a visual way which are consistent with Traditional dialogues,” she said.

In a recent letter to Aboriginal Affairs Minister Stephen Dawson, Senator Cox urged the Government to properly consult with community so that the Bill met the principle of Free, Prior and Informed Consent under the United Nations Declaration on the Rights of Indigenous Peoples.

On Tuesday she said that under the new Bill, “the Minister’s ability to approve the destruction of Cultural Heritage where parties cannot reach agreement does not meet the principle of Free, Prior and Informed Consent”.

“We know that of the 143 section 18 permits that have been considered by the Minister between 2017 and 2020, only one was knocked back,” she said.

“I also understand that existing section 18 approvals will expire within 10 years unless work has been ‘substantially commenced’ and there will be a 12 to 18 month period in which section 18 can be approved.

“As described in the Juukan Gorge inquiry, section 18 has become a ‘damage by permit’ system that facilitates the legal destruction of First Nations heritage by mining companies.”

The National Indigenous Times understands that a taskforce is being set up to develop key documents related to the bill, including the regulations and Aboriginal Cultural Heritage Management Code.

The Aboriginal Cultural Heritage Council will, if the Bill is passed in its current form, have a range of functions and “all the powers it needs to perform” them.

Its functions include:

  • promoting public awareness, understanding and appreciation of Aboriginal cultural heritage in the State;
  • promoting the role of Aboriginal people in the recognition, protection, conservation and preservation of Aboriginal cultural heritage; and the management of activities that may harm Aboriginal cultural heritage; and the administration of this Act;
  • proactively assisting in the recognition, protection, conservation, preservation and management of Aboriginal cultural heritage, including, if relevant, by developing guidance materials;
  • providing advice, and taking appropriate action in relation to Aboriginal ancestral remains and secret or sacred objects;
  • making decisions in relation to Aboriginal Cultural Heritage (ACH) permits and management plans;
  • making recommendations relating to prohibition orders and remediation orders under;
  • making decisions relating to the endorsement of ACH protection agreements establishing and maintaining the ACH Directory;
  • providing advice to the Minister at the Minister’s request or on its own generally in relation to the recognition, protection, conservation, preservation and management of Aboriginal cultural heritage, and on any other matter relating to the exercise of the powers of the Minister under the Aboriginal Cultural Heritage Act

However, the proposed law also provides for parties who object to decisions by the Council to appeal to the Minister for Aboriginal Affairs to intervene. The Minister has the power to uphold decisions but also to issue new decisions.

Six categories of Ministerial decisions can be challenged by “affected persons” in the State Administrative Tribunal.

Those decisions are: to cancel or suspend the approval of an Aboriginal Cultural Heritage management plan; to give a stop activity order; to give a prohibition order; to extend the term of a prohibition order; to give a remediation order; to amend or cancel a prohibition order.

While the right to appeal a decision to amend or cancel a prohibition order is of particular significance to Traditional Owners, it is notable that reviewable decisions do not include the right to appeal against a Minister’s decision to approve an Aboriginal Cultural Heritage management plan.

By Giovanni Torre