The State of Western Australia is repealing laws it introduced “to prevent another Juukan Gorge”, after its reforms were labelled too prescriptive, complicated and confusing.
The Aboriginal Cultural Heritage Act 2021 (WA) (2021 Act) was enacted after 46,000-year-old sacred Aboriginal rock shelters were controversially destroyed by Rio Tinto during a mine expansion project in 2020.
The destruction had been authorised under section 18 of the Aboriginal Heritage Act 1972 (WA). At the time, section 17 of that Act made it an offence for a person to excavate, destroy, damage, conceal or in any way alter any Aboriginal site, unless that person was acting with the Minister’s consent under section 18 to sign off on mining projects.
Consent had been granted in 2013, before more than 7,000 Indigenous artefacts and sacred objects were subsequently discovered in the area, including a 4,000-year-old plait of human hair, woven together from the strands of the Traditional Owners’ direct ancestors.
The destruction of the Juukan Gorge triggered public protests, a Federal Parliamentary Inquiry and calls for urgent reform of Indigenous cultural heritage laws.
The 2021 Act came into force on 1 July 2023. Thirty nine days later, the Western Australian Government announced that the 2021 Act would be repealed.
The State’s current Premier, Roger Cook, said the 2021 reforms would be scrapped because they “went too far”.
Reforms contained in the 2021 Act included:
a. Offences and higher penalties for causing three tiers of harm, without authorisation, to Aboriginal ancestral remains, places, objects and cultural heritage in protected areas.
b. A land-use approval system with three tiers:
i. ‘Tier 1’ activities that involved no, or minimal, ground disturbance did not need approval, however reasonable steps would still be required to be taken to avoid or minimise risk of harm.
ii. ‘Tier 2’ activities, involving low ground disturbance, required a permit and proponents would need to provide notice to the impacted Aboriginal people;
iii. ‘Tier 3’ activities, involving moderate to high ground disturbance, required a management plan and proponents to undertake consultation.
c. Requiring all proponents to undertake a “due diligence assessment” to learn if, and how, their proposed land use would impact Aboriginal cultural heritage.
Reuters reported that WAfarmers CEO, Trevor Whittington, called the 2021 Act “unworkable” because he said the corollary of the reforms would be that “[e]very new farming activity that we undertook would require a new heritage survey”.
Western Australian Minister for Aboriginal Affairs, Dr Tony Buti, told the State Parliament on 9 August that “the 2021 Act, which was intended to provide greater certainty as well as protection for Aboriginal cultural heritage, is not providing the clarity and security required by a legislative regime. This was not our intention, and we are sorry that this has happened.”
In response to the announcement, the Traditional Owners of the Juukan Gorge, the Puutu Kunti Kurrama and Pinikura Aboriginal Corporation (PKKP), said “[t]he PKKP are outraged that they, and Traditional Owners in Western Australia are back to square one, and the Cook government is reverting to laws that allowed the destruction of Juukan Gorge”.
Premier Cook admitted the “Juukan Gorge tragedy was a global embarrassment” but said “the complicated regulations, the burden on landowners and the poor rollout of the new laws have been unworkable for all members of our community”, causing “stress, confusion and division”.
“The original intent of the legislative change nearly two years ago, was to prevent another Juukan Gorge – and my Government will deliver on that commitment”, Premier Cook said.
The Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 was introduced to the Western Australian Parliament and second read on 9 August 2023.
If passed, this bill would restore the highly criticised Aboriginal Heritage Act 1972 (WA) with some amendments, including to section 18, to:
- provide Traditional Owners the same appeal rights as proponents;
- require landowners to notify the Minister if new information comes to light about Aboriginal cultural heritage attributes in respect of land that has already received consent; and
- expressly prohibit gag clauses, so that a native title party can’t be prevented from exercising its rights under section 18 of the Act, including objecting to a section 18 notice or seeking review.
Aboriginal flag, 2021 via Wikimedia Commons CCO 1.0 – File:Aboriginal Flag, Invasion Day march, Redfern, 26 January 2018.JPG – Wikimedia Commons
Mulka’s Cave, 2006 via Wikimedia Commons CC 3.0 – File:Mulka’s Cave.JPG – Wikimedia Commons