This opinion piece has been written by Peter Veth, Joe Dortch and Jo Thomson, from the School of Social Sciences UWA, and Peter Jeffries from Murujuga Aboriginal Corporation. 

The WA State Government has initiated a welcome and broad-ranging consultative process for the proposed amendments to the WA Aboriginal Heritage Act 1972-1980. Plain-language resources have been prepared and regional meetings held.

While the benefits of negotiated native title agreements, either as ILUAs or through the Future Acts process, are understandably also under the lens, here we discuss the positioning of Indigenous cultural heritage owners, practitioners and regulators within the proposed reforms.

The proposals include the introduction of a tiered assessment process and the decentralisation of decision-making to new Local Aboriginal Heritage Services (LAHS), which must be 100% Aboriginal-owned.

LAHS will have a statutory role to ensure the right people speak for country, coordinate consultation, and facilitate agreements. Both native title holders and traditional knowledge holders should be consulted, and it is envisaged that LAHS will initially be established by existing Aboriginal organisations such as Prescribed Body Corporates (PBCs).

Our understanding is that LAHS would operate at both the place and landscape levels and provide cultural heritage advices to an Aboriginal Heritage Council (AHC).

The AHC will be staffed by nine Indigenous people with expertise (wherever possible) including anthropology, archaeology, governance, heritage, history, management and planning.

We note, however, that cultural competency has not been explicitly identified as an essential requirement, although this should occur with the preference for Aboriginal members and the listing of anthropological skills.

The AHC articulates with the Department of Lands, Planning and Heritage (DLPH).

Depending on the scale of impact and existence of agreements, the AHC will provide six categories of response to land use applications ranging from approval with no conditions through to unlikely to be approved. The Minister responsible may issue consents to use land/destroy sites and these decisions may be appealed through the State Administrative Tribunal (SAT).

In the proposed model, the AHC will have a review oversight of the functions of the LAHS, and the DLPH would work closely with both the LAHS and the AHC. In some respects, there is more transparency, efficiency and appellant rights in this model; in other respects, the new acronyms potentially re-badge existing processes.

We believe that in an increasingly proactive heritage environment there are unquestionable benefits in the proposed reforms.

However, the fact remains that most Aboriginal corporations are under increasing pressure to engage with, and perform rapidly to, complex heritage compliance frameworks linked to industry production cycles (such as sub-divisions, road easements and mine expansions). Overall, many LAHS are still not adequately resourced to consistently succeed within this space, given asymmetry in resourcing as a legacy of ‘beneficiary catch-up’.

The new responsibilities being placed in the hands of the LAHS, which will include dealing with Register legacy issues, preparation of registration information (standards are not yet specified) and constant industry requests, are substantial.

As PBC or representative groups managing the LAHS will already be addressing a host of other matters such as cultural activities, community development, governance, and land access, this aspect of the reform requires careful thought.  Many PBCs do not have sufficient income or staff resources to maintain a LAHS – there may be some capacity in industry-intensive agreement areas (such as the Pilbara), although even in these regions PBC structures and processes are sometimes still in development.

The LAHS will therefore require long-term government support and hybrid funding models to ensure their ongoing capacity and success. Promises to support the establishment of LAHS should be scrutinised carefully as consultation continues.

In the new regime, both the Department and Heritage Committee must have increased resourcing and an adequate skills base. Consultative and compliance frameworks all have pinch-points, and arguably the cyclical starving of human resources dedicated to the formal review process in the past has been ‘costly’.

Previous cycles of reduced funding and deregulation have resulted in uncertainty and delays for Indigenous owners, planners and land-use parties, including national park and marine estate managers. We note that the mandate of the Department will expand to include education and promotion, and to take on the role of the LAHs in regions where no Aboriginal organisations have been appointed.

The Department will facilitate the consultation and agreement-making processes. It will also assist with negotiations between Knowledge Holders and proponents where agreements cannot be reached – effectively underwriting the entire heritage process over potentially very large areas. Resourcing and skills levels must match this considerable mandate.

Briefly taking a helicopter view of the reforms to the Act we believe that a landscape approach to sites and places of significance is now better accommodated and sites of intangible value are more clearly defined. We think there is much to gain in embracing heritage values and their management within cultural context. Heritage sites can be left isolated through increasing land-use pressures, to represent Museum Pieces, where access and connection (to any community of interest) becomes just a memory.

We think there is still a need to separate the process of site assessment and registration from permission to use land on which sites occur. Undertaking these processes together can result in the reduction of both tangible and intangible values. We ask if the establishment of LAHS will necessarily resolve this fundamental issue.

Submissions were made to the 2018 public review round outlining an Aboriginal Heritage Tribunal which would be able to hear appeals on the values and significanceof heritage sites and places before a magistrate and senior heritage specialist. An appellant body that can arbitrate on contested heritage values is, in our view, lacking.

Akin to the NSW Land and Environment Court it could hear detailed submissions from Traditional Owners and land-users and be more responsive than the WA SAT, which would need a wider range of environmental and pollution control functions.

We agree with the proposal to improve professional standards. The discussion paper makes explicit reference to the Burra Charter. The Charter is a set of principles that outline a nationally accepted best practice standard for cultural heritage management that have already been adopted by the Heritage Councils of Queensland, NSW, Victoria and Tasmania.

Heritage practitioners harmonise their assessments with the Charter, professional codes of ethics and the primary status of Indigenous custodians.  This will improve the quality and reliability of heritage information.

We support the retention of the Aboriginal Heritage Register as an information repository, rather than solely a list of Registered places. The accuracy and reliability of the Register has long been a source of dissatisfaction and sufficient resourcing must again be provided to upgrade and improve the Register and address the backlog of site assessments.

With a new Aboriginal Heritage Act, WA is poised to do better with the heritage of the longest continuous culture in the world and a valuable landscape ‘inherited’ through dent of acquisitions, agreements and contest. This is a historically important opportunity to improve the recognition, respect and management of Aboriginal cultural heritage in Western Australia.

We believe that sufficient consideration and support now for meaningful reform of this nearly 50 year-old Heritage Act will help both celebrate the cultural assets of the First Australians and lay the foundations for life-changing regional economies and heritage futures.