By Dr Lauren Butterly
This week, the Interim Report of the Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge was released. The Interim Report made strong recommendations including restitution for the destruction of the Juukan Gorge rock shelters and replacing the current WA legislation.
The Interim Report has focussed on the investigation into the immediate causes of the destruction of the Juukan Gorge rock shelters and the broader experience in Western Australia of Indigenous peoples and industry.
Key Interim Findings – WA Cultural Heritage Laws
In terms of the destruction of Juukan Gorge, the Inquiry found that the current WA cultural heritage laws:
‘played a critical role in the destruction of the shelters. The Aboriginal Heritage Act 1972 has failed to protect Aboriginal Heritage, making the destruction of Indigenous heritage not only legal but almost inevitable.’
The Inquiry recognised that the Aboriginal Heritage Act 1972 (WA) is under review, and a draft Bill has been released for consultation. The Draft Aboriginal Cultural Heritage Bill 2020 was released on 2 September 2020 and consultation closed on 9 October 2020.
EDO’s analysis of the Draft Bill can be found here, and includes that there was an inadequate period of time to comment on such complex reforms. The Interim Report noted that because of the WA election in March 2021, and the consequent recent prorogation of the WA Parliament, there is still opportunity to consider the Draft Bill in detail.
The Inquiry emphasised the need for new laws and action in the meantime to ensure there is no further damage caused by the inadequacies of the current laws.
The Interim Report makes clear that urgent thought needs to be given to processes and procedures still in place while the WA Draft Bill is being developed. Section 18 consents, that made the destruction of Juukan Gorge legal, are still the law in WA, and under the Draft Bill those section 18s that already exist will continue to be the law. A key recommendation in the Interim Report is that a moratorium should be put in place in relation to the consideration and approval of new s18s unless it can be established and verified that there is current free, prior and informed consent from the Traditional Owners.
The Interim Report has made it clear that the WA heritage legislation ‘must as a minimum ensure Aboriginal people have meaningful involvement in and control over heritage decision making, in line with the internationally recognised principles of free, prior and informed consent’. It is EDO’s position that any change in approach or process, including the Draft Bill, must 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. This is the minimum standard recognised at international law in the United Nations Declaration on the Rights of Indigenous Peoples.
EDO’s analysis of the Draft Bill released for public consultation is that while it contains some important improvements, arguably not all decisions require ‘free, prior and informed consent’. Notably, the Minister (or the State Administrative Tribunal) will have the final say on key decisions. This element of the Draft Bill needs urgent review.
The Interim Report’s focus on ‘free, prior and informed consent’ provides a vital frame to work to improve the Draft Bill in WA. Further, these WA reforms are likely to inform reforms in other jurisdictions such as NSW, Tasmania, Queensland and the Commonwealth in the immediate sense.
Where to next? The chance to get crucial reforms right
The Inquiry will continue, and the next phase will look more closely at the experience of other jurisdictions and the Commonwealth government in protection of Aboriginal cultural heritage.
EDO’s submissions to the Inquiry are that Commonwealth protection is severely lacking, and there is urgent need for reform in many States.
There are ongoing reform processes in New South Wales, Tasmania and Queensland, and those jurisdictions must prioritise these reforms. In particular, NSW and Tasmania have legislation that is of a similar era and content as WA (and is, therefore, similarly inadequate).
We are at a critical juncture, and we need to get this crucial reform right across the country. As noted by, EDO Board Member, Joe Morrison, and EDO CEO, David Morris: ‘Apologies cannot replace what is lost. We advocate for a better way to honour the things lost by reforming our national psyche, our laws and our values.’ Never again.