Victory! Repeal of WA Aboriginal Cultural Heritage Law By James Reed
Good news! Good news! The intense fight Western Australia farmers put up to counter the oppressive Aboriginal cultural heritage legislation has been successful, and the law will be repealed. It is not often that such a decisive win is delivered so soon, but this one just had to be defeated, since in principle it would have made farming and mining next to impossible. Let us hope now that momentum continues to thrash the Voice, which will be even deadlier, with even higher stakes.
As well, there is an argument here that changes to the constitution, such as via the Voice proposal are dangerous, because, if discovered to be flawed, they are not easily undone. But, that is the agenda with the Voice; to make the changes eternal, or for as long as Australia as we knew it, lasts.
“WA Premier Roger Cook has confirmed his government will scrap its controversial Aboriginal cultural heritage legislation.
The laws have been in effect for only five weeks, and had been designed to avoid a repeat of Rio Tinto’s destruction of 46,000-year-old culturally significant caves at Juukan Gorge in 2020.
But Mr Cook now says those laws went too far, were too complicated and placed unnecessary burdens on property owners.
Mr Cook says the legislation, passed in 2021, will be revoked and replaced with the original laws from 1972, with some key amendments.
“By reverting to original 50-year-old legislation we can reset, end all the confusion and importantly strike the right balance,” he said.
No onus on property owners
Under the new regime, Mr Cook said “everyday” property owners would not be required to undertake surveys of their own land under any circumstances.
Those surveys had been a key concern for landowners, who were unsure when they would have to pay for cultural surveys to be undertaken, and how much they would cost, before they could do certain work on their property.
Instead, government will start a decade-long project to undertake cultural heritage surveys of land in “high priority” sections of the state, with the surveys to be publicly published.
The Local Aboriginal Cultural Heritage Services body, which had been established under the 2021 act to negotiate and facilitate land use proposals, will also be scrapped.
Mr Cook said existing native title groups would be supported to grow their capacity to work with government and industry.
“When I became premier eight weeks ago, I made a promise to the people of Western Australia. A promise that I would always govern in the interest of all Western Australians and that I would lead a government that uses common sense and above all listens to people,” he said.
“Today I’m delivering on that commitment.”
Voice link ruled out
Mr Cook denied there had been any pressure exerted by the federal government to repeal the laws, amid speculation that confusion surrounding the act was muddying the waters around the Voice referendum.
“I want to make this very clear, I have not had any communication with the prime minister’s office or any federal members in relation to these laws,” he said.
However, Federal Opposition Leader Peter Dutton continued to try to link the issues today while praising the decision to rescind the law, which he said had been “imposed in an ideological way.”
“It was a well-intentioned piece of legislation, but it had unintended consequences,” Mr Dutton told the Liberal partyroom.
“The good news, though, is because it was legislation … the harm can be undone.
“But that’s not the case with the Voice.
“The changes to the Constitution proposed by the Albanese government would be permanent.”
Continuing to sell the backflip as a result of the government listening to the community, Aboriginal Affairs Minister Tony Buti reiterated the intention was to avoid another incident like Juukan Gorge.
“We wanted to provide legislation equipped with greater certainty and protection for Aboriginal cultural heritage, but unfortunately it did not deliver the clarity and security that we desired,” he said.
Aboriginal people treated as ‘second class citizens’: PKKP
The Traditional Owners of Juukan Gorge, represented by the Puutu Kunti Kurrama and Pinikura (PKKP) Aboriginal Corporation, said they only received a “phone call that lasted about five minutes” before the government announced its decision.
PKKP Land and Heritage Manager Dr Jordan Ralph said the decision to repeal the new laws demonstrated First Nations people were at the bottom of the government’s list of priorities.
“We’re going back to pre-Native Title legislation that was never fit -for-purpose, that benefited industry over Aboriginal heritage and Aboriginal people. So, it is really a backward step.”
Mr Ralph said the organisation had lost faith in the government’s ability to adequately protect culturally significant sites.
“This is nothing short of a cluster and again, First Nations people are being treated as second class citizens in their own Country.”
The destruction of Juukan Gorge was allowed under what’s known as a “section 18” process under the old legislation, which allowed the minister to approve the destruction of cultural heritage sites.
Mr Buti said while section 18 would be revived by reverting to that legislation, it would be “strengthened” under the changes announced today.
That includes granting native title groups the right to appeal section 18 decisions – a right which had previously only been afforded to the companies applying to destroy heritage sites, and which Aboriginal groups had been asking for since Juukan Gorge.
Landowners will also have to notify government if they learn new information about any site subject to a section 18 order, and will not be able to gag traditional owners from doing the same.
Yinjibarndi Aboriginal Corporation chief executive Michael Woodley said he’s disappointed by the debate around the changes.
“The disappointing part of it is the outside noises from most of the people who’ve been raising concern about it, kind of takes us back in terms of our relationship and what we’re trying to build together,” he said.
“So the reconciliation process for first nations people and non-Indigenous people kind of takes a step back as well.”
‘We got it wrong’: Attorney General
Attorney-General John Quigley described the impacts on smaller landowners like farmers as “unintended consequences”.
“Everyone’s focus was on what was happening up in the mining area and Juukan Gorge and how to stop it,” he said of the process of passing the now-defunct reforms through parliament.
“And a lot of work went into that, but there’s been unintended consequences. We got it wrong.”
The government said the changes announced today would not be rushed through parliament but could be accelerated if the opposition wanted it.
As Parliament sat for the first time after the winter recess today, Mr Buti began the formal process of repealing the 2021 legislation.
‘People power’ in action
Addressing a rally of hundreds of farmers on the steps of Parliament House, opposition leader Shane Love said the government’s backdown was a “great testament to people power” over a “failed act”.
“The only way that we can stop them is to push back, and today is a great day for you and for the communities that you come from that you’ve been able to exert such pressure that the government has buckled under it.
“But don’t trust them, you can’t trust them. You can’t trust Tony Buti, you can’t trust Roger Cook, you cannot trust the Labor government.”
Liberal Leader Libby Mettam had a similar message for the crowd.
“That’s why we need to keep the pressure on this government until 2025, until we get that opportunity to overthrow a government who are increasingly out of touch with the needs of ordinary, hard working Western Australians.”
Farmers welcome decision
One of the 2021 law’s most vocal critics, WAFarmers President John Hassell, told the rally today’s announcement was a really good outcome.
“Farmers are paralysed with fear with regards to doing any operations on their farm,” he said.
“On freehold land we should be able to develop our farms to do the jobs that we need to do to make a living without fear or favour whilst still protecting cultural heritage but not to be dictated to and not to be penalised for it.”
A return to the 1972 act left “a long way to go” to resolve issues with that regime.
Another critic, Pastoralists and Graziers Association President Tony Seabrook, told the crowd he would continue fighting for his members’ rights, and called on the government to disband an implementation group it had formed to work through issues with the laws, saying industry representation was inadequate.
Repealed laws ‘draconian’
Across the country in Canberra, federal Nationals leader David Littleproud described the backflip as “a small win for common sense”.
“It was draconian, it was an overreach and it needed to be addressed,” he said.
“The admission today by the Western Australian government that they got it wrong, that they didn’t listen, they didn’t understand the implications of what they were imposing on the people of Western Australia is a big lesson to the Albanese government not to overreach, not to do the same thing.”
The federal government is currently considering what steps it can take to protect First Nations cultural heritage.
Mr Littleproud called on the Albanese government to make clear it would not introduce laws similar to what WA will soon repeal.
Uncertainty around transition
WA Local Government Association president Karen Chappel said the decision has been welcomed by the sector, but warned there was uncertainty around how the transition would take place.
“It was good of the government to recognise that the 2021 act was unworkable and that they have reverted back to the 1972 act,” she said.
“I think there’s been a great sense of relief from many as to where we are now.
“After receiving the announcement, we are seeking clarity from the state government on the time frame, to know when the transition from the 2021 act back to the 1972 act takes place.”
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