First Nations groups sidelined by WA cultural heritage changes

August 14, 2023
Juukan Gorge was destroyed by Rio Tinto, despite the corporation knowing it was a significant cultural site. Photo: Still from a video by Pittwater Pathways

Western Australia Labor Premier Roger Cook’s announcement on August 8 that he was repealing WA’s new Aboriginal Cultural Heritage laws comes after sustained opposition from vested mining, pastoral and farming interests, and as Labor urges a Yes vote in the Voice to Parliament referendum.

The laws, in effect for just five weeks, were enacted after Rio Tinto legally destroyed the Juukan Gorge caves in 2020, after being warned by the Puutu Kunti Kurrama and Pinikura people (PKKP) that they were a significant cultural site.

The 46,000-year-old rock shelters were in the Hammersley Ranges, roughly 60 kilometres from the town of Tom Price.

The now abandoned cultural heritage law would have required developers to submit a management plan to the Aboriginal Cultural Heritage Council prior to disturbing, or altering, a site if it was believed to hold cultural significance.

The Act stated it aimed to value and protect Aboriginal cultural heritage and manage activities that may harm that heritage and that it recognised “the special interest Aboriginal people have in protecting, conserving, preserving and managing Aboriginal cultural heritage”.

Cook claimed the back flip shows his government “listens to people”.

However, PKKP chairperson Terry Drage said that that “listening” did not include Traditional Owners, who were not consulted about plans to scrap the new laws.

He said the community was “devastated and angered” by the news, telling the ABC on August 5 that while the new act “is not perfect, it is better than what it replaced”.

“If the state government had listened to community feedback during the consultation phase, we would not be in this mess.

“Fix the guidelines, which are the biggest problem, not scrap the act.”

The decision to repeal the law means that the 1972 law, in place when Juukan Gorge was destroyed, has come back into effect, with some amendments. That 50-year old law will now allow Native Title holders to appeal decisions by the Aboriginal Affairs Minister which permit the destruction of culturally significant sites under a new Section 18.

As this legal means of appeal was absent from the cultural heritage law, some First Nations groups, including the Kimberley Land Council (KLC), opposed the law because it still left final decision-making power in the hands of a minister and not Aboriginal organisations.

The KLC said on August 9 that while it cautiously welcomed the law’s repeal, the proposed amendments to the 1972 Act “do not go far enough”.

“While the proposed amendments to the 1972 Act may appear to be positive for Traditional Owners’ rights and cultural heritage protection, they do not go far enough,” KLC CEO Tyronne Garstone said.

“Aboriginal people, not the minister, should be the final decision-makers on matters concerning our cultural heritage.

“Throughout the debacle of the past week the KLC was not once asked for our genuine feedback on the proposed amendments and whether they are suitable.

“It saddens me that Aboriginal people have again been removed from the decision-making room, about a subject matter and law that so inherently affects us.”

The KLC claimed it had only received a copy of the drafts less than 24 hours before the bills were presented to parliament.

Garstone said a persistent failure in the 1972 law was the lack of prosecution of breaches where damage or destruction of cultural heritage had already happened.

“If the government is not willing to prosecute and appropriately penalise those who damage cultural heritage, the law is meaningless,” he said.

“The Premier must provide clarity about his comments that those who ‘unknowingly disrupt’ cultural heritage will not be prosecuted.

“We have grave concerns that this misleading and confusing statement may be used as a defence by developers when their actions damage or destroy cultural heritage, and as an excuse for the Government to continue to fail to protect the interests of Aboriginal people by not prosecuting breaches of the law.”

Garstone said Australia’s approach to cultural heritage protection must also be pursued at the national level by the federal government.

“It’s been one and a half years since the release of the Australian Parliament’s final report into the destruction of Juukan Gorge, which highlighted the need for a national framework, and still little has changed.

“It is still unlawful to damage Aboriginal cultural heritage,” Garstone stressed.

The legal changes coincide with the debate over the Voice to Parliament referendum, to which Labor and most mining corporations are championing a Yes vote. Many of the latter are on record stating they would not commit to altering or ceasing operations if requested to by bodies set up by the Voice.

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