The Western Australian government’s Aboriginal Cultural Heritage Bill, which keeps the final say over important heritage decisions with the Minister and not Aboriginal people, is expected to be rammed through WA’s lower house of parliament tonight.
The National Indigenous Times understands the government intends to have the Bill passed by both houses of parliament before the end of the year, which would necessitate it passing the Legislative Council (upper house) before returning to the Legislative Assembly within the next two weeks.
The legislation, which was tabled today, retains the most important final decision making powers with the Minister for Aboriginal Affairs.
It also stipulates that the Aboriginal Cultural Heritage Council should “as far as practicable” have a majority Aboriginal membership, not a 100 per cent Aboriginal membership as has been called for by a number of stakeholders.
If the Bill is treated as urgent business and rushed through parliament, there will be no opportunity for scrutiny or review by a relevant parliamentary committee.
WA barrister Dr Greg McIntyre SC noted that the equivalent body in the Northern Territory is 100 per cent Indigenous.
“As Dr Hannah McGlade rightly pointed out today, the better model is the Northern Territory model, where the primary decision-making bodsy is a group of Aboriginal people nominated by the four Aboriginal land councils in the Territory,” he told the National Indigenous Times.
“They make the primary decisions and are assisted by the Aboriginal Areas Protection Authority, which is an independent statutory authority whose governing body is nominated by the land councils, rather than public servants within the government.”
The senior barrister said the most important issue to appeal to the State Administrative Tribunal, the Minister’s approval of a heritage management plan, had been excluded from the Bill.
“That was one they chopped out. It was in last year’s version of the Bill and they are now saying they think that power should remain with the Minister, not subject to review by anyone,” he explained.
“It has an element of substantive racial discrimination.”
“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.”
Dr McIntyre said that if there was anything prohibiting “the right of Aboriginal people to appeal the Minister authorising a heritage management plan, I don’t know why it doesn’t apply to [a mining company or developer] appealing a stop work order”, noting that stop work and prohibition orders by the Minister could be appealed to the State Administrative Tribunal.
Dr McGlade told National Indigenous Times that those opposed to the Bill called 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,” she said.
“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.”
On the steps of parliament house this morning, Anthony Watson from the Kimberley Land Council said the bill was not the product of “co-design”, despite government rhetoric.
“This bill has doesn’t give us satisfaction that we can protect our right… to stop further damage to our Country,” he said.
“From the start the government talked about co-designing. They should have worked with us – this government needs to engage with us in a meaningful way.
“The Minister should not have the final say. Some changes have been made, but the parts that have been changed to make them better are undermined by the Minister having the final say.”
Watson said he felt as though the Indigenous community was put “under duress” by the process and the timing of the Bill being tabled.
“It’s a short time – and it’s unfair to Traditional Owners. We are under duress responding to this process.”
Doris Eaton, a Nyamal Traditional Owner from the Pilbara, said the process “is not giving us a chance to sit at the table to review the [final] Bill”.
“These are our sacred sites and we need to make sure we have the opportunity to protect them,” she said.
“Government is always designing things for Aboriginal people, they needed to come and sit down with us to co-design this bill. They have the power and we haven’t got the power.”
“At this moment a lot of people are going out and clearing the country, and we are losing our sites. It is hard and challenging to see our sites destroyed. What will tell our children and grandchildren?”
Senator Dorinda Cox, who called the press conference, said “we have seen a lot of consultation that has been talking at people”.
“We have not seen co-design with First Nation people. First Nations people have been saying all the way that they are unhappy with this Bill,” said the Senator.
“This is a once in a generation opportunity that we must take… We can’t continue to undersell the importance of First Nations’ rights in this country and particularly in this state.”
Senator Cox also called for the state government to embrace the Northern Territory model of Indigenous-led decision making.
Wilson Tucker MLC of the Daylight Savings Party and Sophia Moermond MLC from the Legalise Cannabis WA Party spoke expressing their concerns about the Bill, alongside Dr Brad Pettitt, Greens MLC.
“This is a lost opportunity… This does not help with the process of reconciliation and it does not do what the bill was supposed to do,” said Dr Pettitt.
“There are new provisions… applying to all sites above 1100 square metres, this will create a colossal amount of work and bureaucracy.”
In a statement issued today, Aboriginal Affairs Minister Stephen Dawson said “protecting the heritage of Aboriginal people is integral to understanding our past, and building a stronger future for Western Australia”.
“The Aboriginal Cultural Heritage Bill 2021 has been three years in the making to reform 50-year-old legislation, align with Commonwealth Native Title laws and most importantly, give Aboriginal people the right to make decisions on matters impacting their cultural heritage,” it read.
“These laws build on the many successful examples of collaboration between Aboriginal people and industry and empower Traditional Owners to negotiate agreements that can deliver broad outcomes and benefits for their communities.
“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.”
By Giovanni Torre