Submissions close on the WA draft Aboriginal Cultural Heritage Bill 2020 this Friday 9 October 2020.

This draft Bill is set to replace the existing Aboriginal Heritage Act 1972 (WA), containing the infamous “section 18” approvals which allowed the destruction of the Juukan Gorge, currently the subject of Senate Committee hearings.

It is beyond doubt that the WA Aboriginal cultural heritage legislation needs a major overhaul. The system has been widely criticised; allowing destruction of heritage sites without decision-making or input from Aboriginal people, favouring Ministerial discretion, and lacking independent merits appeal rights for Aboriginal people.

There is an urgent need to reset the balance in favour of Aboriginal people. The question is – does this draft Bill get that balance right?

What are the rules for setting that balance?

This draft Bill should be judged against the fundamental principle that Aboriginal people must give their free, prior and informed consent in relation to decisions that impact protection of their heritage. EDO set out the application of these principles to Aboriginal cultural heritage in our detailed submission to the Rio Tinto Inquiry.

In short, where development will threaten cultural and physical survival, including sacred sites or important sites, states are obliged to affirmatively obtain consent from Indigenous peoples. The process of obtaining that consent must meet the procedural standards of being “free, prior and informed”.

More time needed for consultation

The public submission period on the draft Bill has been a short 5 weeks, commencing 2 September. The draft Bill is necessarily complex and lengthy (200 pages). While there are positive elements, others deserve more fulsome consideration and consultation. We set some of these out below, but there are other complexities in the draft Bill that we will discuss in our full submission.

Central to the success of this draft Bill is whether it provides for free, prior and informed consent of Aboriginal people when activities impact on their heritage. Under the draft Bill, where there is a disagreement between an Aboriginal party and a proponent (like a mining company) about a heritage management agreement that deals with access to, or destruction of, heritage, the Minister will have the ultimate decision. Further, in making this decision, the Minister must consider what is “in the interests of the State”? In such circumstances, the “how” of decision-making, is just as important as the “who”.

A key concern should be to ensure that the consultation process for the draft Bill is itself robust and read in the context of principles of free, prior and informed consent. In this case, there are real questions about whether the WA Government’s public consultation on the draft Bill is, and has been, adequate. More time is desperately needed to debate these critical questions.

Key positive elements

There are several positive elements to the draft Bill:

  1. The draft Bill captures tangible and intangible heritage, cultural landscapes and traditional and living heritage. This definition properly recognises the complexity and diversity of Aboriginal heritage as not only physical but also intangible, and as a living culture.
  2. The draft Bill establishes “cultural heritage management plans” which will be a form of agreement between affected Aboriginal parties and proponents on managing cultural heritage on the taking of “medium” and “high impact” activities. This is an improvement on the current position.
  3. The draft Bill establishes a priority system for identifying the Aboriginal party who are entitled to negotiate the terms of access to, and destruction of, heritage sites through a cultural heritage management plan. This includes the establishment of “Local Aboriginal Cultural Heritage Services”(LACHS) that can be appointed by the Aboriginal Cultural Heritage Council (a body we will discuss below). If there is no LACHS, the other bodies that can be an Aboriginal party, in order of priority, are: a native title party; each person identified as a knowledge holder; or a native title representative body.
  4. The draft Bill contains a ‘no contracting out’ clause which will mean other forms of agreement (such as native title agreements) do not override the plan-making in the draft Bill. Other agreements may still be used to meet the requirements of the draft Bill, but they will need to be specifically assessed.
  5. The draft Bill contains new merits appeal rights to the WA State Administrative Tribunal (SAT) by both Aboriginal parties and proponents in respect of the Minister’s decision on a cultural heritage management plan.
  6. The draft Bill proposes a transparent process to protect an area from destruction, through a “protected area” declaration. This is a strong power if utilised, and will provide a high level of protection through a transparent application process. However, the decision-maker is the Minister for Aboriginal Affairs with no appeal rights for Aboriginal people if a declaration is refused. The Minister considers “what is in the interests of the State” when deciding whether to declare a protected area (more on this below).

Elements where greater consideration is needed

There are outstanding questions and concerns about some of the most critical elements of the draft Bill – that is, who and how decisions about destruction of culture are made.

1. The Aboriginal Cultural Heritage (ACH) Council should be an Aboriginal body

The draft Bill proposes a state-wide ACH Council with a key role exercising important functions, including mediating between proponents and Aboriginal parties in the application process for management plans, assessing management plans for informed consent and making decisions on permit applications. However, it is not mandated that it has all-Aboriginal membership – only the chairperson is required to be an Aboriginal person, with all other members preferred to be Aboriginal people. By contrast, in equivalent bodies in Victoria, Tasmania and South Australia all members must be Aboriginal people.

The ACH Council has an important role, as a decision-maker, assessor and mediator on Aboriginal cultural heritage. It stands to reason that all the members of the ACH Council are Aboriginal people, bringing it into line with other jurisdictions and reasonable expectations of how such decisions are made.

2. Aboriginal people should make decisions about their heritage

This second issue is more fundamental and raises questions about whether the draft Bill proposes a process which delivers on free, prior and informed consent.

Under the draft Bill a cultural heritage management plan is required for medium to high impact activities. It is to be negotiated between the activity proponent and an Aboriginal party.  As noted above, where the proponent and the Aboriginal party cannot reach agreement, the Minister for Aboriginal Affairs makes the decision to approve or refuse a plan. The Minister’s decision can then be appealed by either the proponent or the Aboriginal party to the SAT. 

In this model, it is not the Aboriginal people affected who make the primary decision, it is the Minister. Is this free, prior and informed consent? The clear question is – who gives the consent? The Minister (or the SAT on review). There are other models that we can look to – in Victoria, the local Aboriginal party makes the decision and the proponent has a right of merits review. While one might still criticise this model, the primary decision-maker is the local Aboriginal party. This element needs urgent review.

3. Is the protection of Aboriginal heritage in the “interests of the State”?

In making this decision, the Minister (and SAT on appeal) considers what is ‘…in the interests of the State’. This is defined in the draft Bill as: ‘for the social or economic benefit of the State, including Aboriginal people; and the interests of future generations’.

This test is applied by the Minister in relation to several decisions in the draft Bill including cultural heritage management plans, in making protected area declarations, and in reviewing the ACH Council’s decisions on permits. It is the central test for whether culture is preserved or destroyed.

This test appears to require a balancing exercise which presumably, in very basic terms, involves weighing the economic benefits of the proposed activity against the interests of Aboriginal people in protecting culture. It could allow the Minister to decide, for example, that there is greater benefit to the State in allowing a mining activity at the expense of the Aboriginal people whose heritage will be destroyed.

This replicates the position at the Commonwealth level, which is currently under review and widely recognised as grossly inadequate. By way of example, the Gomeroi Traditional Custodians applied under Commonwealth law to protect their heritage from destruction by the Shenhua Coal Mine in NSW. In making a decision, the Federal Environment Minister placed weight on economic interests over heritage, a decision the Federal Court upheld. In this example, the balancing exercise was ultimately to the detriment of Traditional Owners. 

More time for reasoned consideration and debate about this test is needed. The need for this public discussion is a compelling reason for more time to comment on the draft Bill.

4. Aboriginal people have no legal redress for breaches of the Act

There is no right in the draft Bill for Aboriginal people to enforce the law, only the CEO of the relevant Department can prosecute an offence and only the Minister can issue a “stop activity order” to prevent imminent risk to cultural heritage.

While this is no worse than the current position in WA, the right to legal redress forms part of free, prior and informed consent. Aboriginal people must be able to seek redress for breaches relating to destruction of heritage through civil enforcement rights, including the ability to stop imminent harm.

Again, there are better examples. In Victoria, “24 hour stop orders” can be issued by authorised heritage officers, and “stop orders” can be issued by authorised officers. Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), Aboriginal people can enforce breaches of that Act in respect of national heritage places through the Federal Court. Again, this should be the subject of further consultation.

At a minimum – more time

The WA Government should be applauded for bringing in positive reform where it is desperately overdue, but it should not be rushed through at the cost of Aboriginal people’s current and future interests.

There are a range of other issues we have not dealt with here but will be detailed in our submission. To name a few – the operation of minimal impact activities, the involvement of local Aboriginal parties in cultural heritage permit application processes and the transitional arrangements for existing section 18s issued under the current Act. These are complex. They deserve greater public attention.

Given the complexity and length of this draft Bill, and the short consultation timeframe, more time is needed on the draft Bill.

Let’s have a more fulsome debate and discussion through more time on this draft Bill. We are at a critical juncture, and we need to get this crucial reform right.

More information

Information on the draft Bill and submission process is available at: https://www.dplh.wa.gov.au/aha-review