Sarah Gall is a political data scientist and membership secretary for the UK’s Conservative Friends of Australia. She previously headed up political and policy research for the Prime Minister of Australia.
Last month, the Aboriginal Cultural Heritage Act 2021 (the Act) came into effect in Western Australia. This replaced laws drafted in 1972 which appeared to favour the largest contributor to the state’s economy: the mining industry.
The Act was designed to protect Aboriginal cultural heritage and avoid any repeat of the destruction of sacred sites.
This came after mining company, Rio Tinto, was given ministerial approval to destroy the 46,000-year-old Juukan Gorge rock shelters, despite archaeological digs revealing the significance of the site.
Under the previous Act, an exemption was provided to landowners – which specifically included lessees from the Crown and holders of exploration licences – to apply for consent to excavate, destroy, or damage any Aboriginal site.
The process of consent involved a request from a landowner to the Aboriginal Cultural Material Committee (ACMC). Made up of Aboriginal men and women from different parts of Western Australia, it would then assess the importance and cultural significance of the site before providing advice to the Minister for Indigenous Affairs as to whether consent should be given to the landowner.
As part of this process, any Indigenous group was able to make a case for the protection of sacred sites.
In the case of Rio Tinto however, a Senate Inquiry into the destruction of the Juukan Gorge concluded that there were “monumental failings” in the process in which ACMC failed in their duty to conduct due diligence. They found that ACMC instead relied on the information provided by Rio Tinto in their 2013 application for consent.
In addition, the Inquiry found that following an archaeological dig commissioned by Rio Tinto in 2014, and the subsequent report in 2018, Rio Tinto was made aware of the significance of the site. The report stated that one of the rock shelters was of “the highest archaeological significance” and had “the amazing potential to radically change our understanding of the earliest human behaviour in Australia”.
These findings were forwarded to the Puutu Kunti Kurrama and Pinikura people (PKKP) in 2018 with whom Rio Tinto had a financial agreement for the use of their land under the native title system.
The agreement that was signed in 2011, and again in 2013, contained various clauses which restricted the PKKP from being able to object to Rio Tinto projects or seek a heritage protection declaration from the state or federal governments without the consent of Rio Tinto.
As such, the PKKP believed that they were not able to voice their concerns about the rock shelters, despite new information coming to light. Rio Tinto therefore went ahead with their plan to blow up the rock shelters in May of 2020.
The Western Australian government committed to changing the law to ensure that traditional owners have a right of appeal or ability to amend agreements where new information arises.
While the intent behind the change in laws was reasonable, the legislation that eventually passed through WA’s parliament can only be described as a complete farce.
The Act that was implemented last month goes further than just removing the exemption which permitted Rio Tinto the ability to legally destroy a sacred site or provide the ability for Indigenous peoples to appeal agreements. It now requires land owners with more than 1,100 square metres to undertake, and pay for, a mandatory due diligence assessment to determine whether Aboriginal cultural heritage is present on their property if they are likely to disturb more than 50 centimetres of soil.
This has already caught landowners off guard. One Western Australian man has been charged for laying a concrete bed across a gravel creek crossing on his own property so that he can access his home when the creek floods during the winter.
According to the Indigenous peoples in the area however, the creek that runs through the man’s property is home to the ‘Waugul’ – a mythological rainbow serpent – which they state could be scared off if its home is altered, causing the water to dry up. Because of this mythological creature, the man is now facing jail time and a £10,000 fine if convicted.
This example, and others like it, have rightly concerned and confused farmers who regularly make changes to their properties, such as planting trees or erecting a fence.
Many farmers now believe that the added layer of bureaucracy will hold businesses to ransom through the need to pay an Aboriginal consultant up to £80 per hour before any work is carried out.
These fears have not been allayed by examples within the first two weeks of the Act coming into force, in which a tree planting event was cancelled after the Aboriginal corporation demanded £1.3 million for its approval.
The Act demonstrates a missed opportunity to find the right balance between property rights, economic interests, and protecting Aboriginal cultural heritage. It has instead swung too far back the other way, providing an unworkable, costly, and overly bureaucratic process in its place.
The Western Australian example should highlight the risks of the proposed Indigenous Voice to Parliament which also aims to add further layers of bureaucracy – but with the permanence of a constitutional change.