The West Australian Government’s Aboriginal Cultural Heritage Bill would simultaneously do little to protect Aboriginal heritage while creating a bureaucratic nightmare for landowners across the state, a source familiar with the proposed legislation has revealed.

The source told the National Indigenous Times that the current draft Bill captures anyone who owns a block of land larger than 1,100 square metres.

They noted that “anyone in this category who intends to carry out virtually any land use activity must conduct a due diligence assessment and then notify the Native Title party and every person who is identified in accordance with the as yet unpublished guidelines”.

The source, who have examined the Bill closely, used the example of a family owning a one acre block who want to install a swimming pool.

“They must conduct a cultural heritage due diligence assessment. They must consult the local ACH [Aboriginal Cultural Heritage] service for the area, native title party and each person who is identified in accordance with the… guidelines,” they said.

“They may have to carry out surveys – depending on what the native title party or each person they have notified says. They may have to prepare a cultural heritage management plan, which must be signed off by the Council and Minister.”

They added that even low-impact work, such as digging a trench for fencing, on sites not known to hold any cultural significance for Aboriginal people, would attract a series of obligations.

The Bill’s improvements, in comparison to the woefully inadequate 1972 Aboriginal Heritage Act, revolve around addressing the “bare minimum” required to approach “modern expectations and parity with other jurisdictions”, according to the source.

They said that while some upgrades had been introduced, the “primary innovation” introduced by the Bill is the creation of “an elaborate and intensely bureaucratic structure of notices, permits and plans”.

These plans are designed to shift responsibility for decision-making from the state government to “a combination of self-assessment and self-regulation by land users, and a new arrangement of Aboriginal organisations” expected to take on the burden of the Aboriginal heritage approvals process, while, importantly, the final say over any contentious decision remains with the Minister for Aboriginal Affairs.

Regardless of this superficially restrictive and far-reaching approach, Traditional Owners do not have the right to appeal decisions to the State Administrative Tribunal in the current Bill, despite recommendations to include it arising from the consultation process, a flaw revealed by Yamatji-Noongar Senator for Western Australia Dorinda Cox last week.

The source noted that the inquiry into the destruction of the Juukan Gorge had unearthed “a huge amount of evidence and case studies about how poor outcomes for protection of cultural heritage in WA, which is unprecedented in its scale and breath”.

“It provides a unique and timely opportunity to understand the problems that are endemic in the system comprehensively,” they said.

“Has the State, in drafting and redrafting its new laws, had discussions with the Aboriginal groups and people who participated in the Inquiry to make sure the current problems have been identified and addressed?”

“In the information about the new laws that the State has published to date, it appears the government is outsourcing the bulk of the administrative and low-level decision making to Aboriginal organisations, but keeping the most critical decisions about destruction of cultural heritage for the Minister, seemingly without appeal.”

The source told the National Indigenous Times that the new approval structure is “much, much more complex and bureaucratic that the current system” and will require significant capacity within the Aboriginal organisations to administer.

They said the State Government’s repeated reference to providing Aboriginal people a “big say” in Aboriginal heritage decisions did not meet the standard necessary for an equitable system.

“Aboriginal groups have repeatedly and clearly confirmed through numerous submissions and actions that the mark is not a “big” say, it is the primary say,” they said.

They questioned why Aboriginal organisations would be expected to take on the administrative work of the state government, forge their own agreements with land users, and address problems successive governments have failed to resolves for decades, including “the hopelessly inadequate Register of Sites”, while still not having the ability to make – or appeal – “the most important decisions”.

“It seems the only support for the Bill comes from the big mining companies with deep pockets,” they said.

“The provisions of the Bill will not just apply to mining, but to every single land owner, corporate and private, in the state.

“No Aboriginal groups have come out in support of the Bill, and many Aboriginal organisations and people are actively protesting against it. That cannot be right. How can the State proceed when no support at all is coming from Aboriginal groups?”

Last week the National Indigenous Times sent questions to the office of the Minister for Aboriginal Affairs seeking confirmation and clarity on a number of issues pertaining to the Bill, including the right to appeal to the State Administrative Tribunal.

A spokesperson responded “please refer to previous responses we’ve made to the NIT on the ACHB [Aboriginal Cultural Heritage Bill]”.

“We have nothing further to add.”

 The National Indigenous Times contacted the Minister’s office Monday morning with a follow up inquiry but they declined to comment.

By Giovanni Torre