Western Australia’s Cultural Heritage Laws At Work By James Reed
The Western Australian Aboriginal Cultural Heritage Act 2021, came into operation on July 1, 2023, and is already showing that it has teeth, if not fangs. One farmer wants to extract building sand from his property in North Dandalup, but the extraction area may be close to a historical indigenous camping ground. S, in accordance with the Act, he needs a cultural heritage assessment which could cost anything from $ 30,000 to $ 100, 000, all to be paid by the individual landowner. And, to top it off, it is also possible that a cultural representative may need to be present to examine every handful of sand take; which in effect makes the project impossible to do.
Wisely, a protest at the Western Australian parliament is planned for next Tuesday (8 August, 2023), with farmers putting demands, including that freehold property rights extinguish any cultural heritage claim. This must be done. but, there is no chance of defeating the run of such woke laws unless the Voice is decisively defeated. The state laws show where this all will go.
“Shane Kelliher knows first-hand the confusion caused by Western Australia’s new cultural heritage laws and says there must be a “better way forward” to preserve Indigenous sites.
Mr Kelliher, 58, has received preliminary written advice organised through his legal firm saying that, under the Aboriginal Cultural Heritage Act, which took effect on July 1, he could be forced to pay between $30,000 and $100,000 for a cultural heritage assessment.
He told The Australian he wanted to extract high-quality building sand from his 85ha property in North Dandalup about an hour south of Perth. But this plan was thrown into doubt when the site was found to be close to possible historic camping areas for Indigenous Australians.
While he supported protecting Aboriginal cultural heritage, Mr Kelliher argued that “it should not be at the cost of the individual landowner”.
“If it incurs cost to the individual landowner, then they should be compensated,” he said. “I’ve got a significant connection to the land myself. It’s been in the family for three generations.”
Federal Nationals leader David Littleproud told The Australian most people already respected cultural heritage sites, but warned the WA laws could backfire and “see that respect taken away”.
“And instead of people coming forward in a co-operative and proactive way, we see people on freehold land hiding and destroying things they previously wouldn’t,” Mr Littleproud said.
He argued the destruction by Rio Tinto in May 2020 of the caves at Juukan Gorge containing evidence of human life dating back 46,000 years was an “abhorrent act”, but warned that the WA laws were a case study in government overreach.
The warning comes ahead of a protest at WA parliament next Tuesday, with farmers from across the state planning to present a series of demands to the government, including their push for freehold property rights to extinguish any cultural heritage claim.
Mr Kelliher said the land where he proposed to develop the sandpit had been in the family since 1935. His plan was to cart the sand to a second property about 15km away where it could be used to provide “house pads” for buildings.
He said the second property was about 3km long and 200m wide which had been rezoned for the purpose of being subdivided into blocks of between 1ha and 1.ha. But he said the second property was also found to be close to Indigenous sites of cultural significance.
“With all the talk about cultural heritage I had my lawyers just have a look at what was proposed. My legal team made inquiries,” he said.
Mr Kelliher organised to receive this preliminary advice through Cornerstone Legal and was informed the property containing the sand was home to four potential Aboriginal sites “where there could be suggested artefacts or possibly even bones”.
“They are suggesting there could have been possible camping areas for Aboriginal people at some stage in the past,” he said. “I am confused about what my obligations are. I am confused about what the cost is going to be … It’s all up in the air.
“My legal firm that’s handling the subdivision and the sand extracting licence engaged a consultant who specialises in site management plans for these particular types of activities. And his view … is that I would need to complete an ethnographic and archaeological survey to put in with the application. And that could cost from $30,000 up to $100,000.
“And then what I’ve been told is that … it is quite possible that I would need a cultural representative to be there with every shovel-load of sand that went out, just in case artefacts or some bones or whatever else are found.”
The new WA laws apply to properties of more than 1100sq m and introduce a three-tiered system imposing obligations on landholders. Cultural assessments can be required for ground excavation of up to a depth of 0.5m (a tier one activity), but permits and land management plans are required for ground excavation of up a depth of 1m, which covers tier two and three activities.
A spokesman for the West Australian Minister for Aboriginal Affairs, Tony Buti, urged Mr Kelliher to contact the Department of Planning, Lands and Heritage for help identify where the specific sites containing Aboriginal cultural heritage were located.
“If sites can be avoided, then no approval is required,” the spokesman said. “The minister is listening and working with all stakeholders.”
Speaking last week in Port Hedland, WA Premier Roger Cook suggested the government was prepared “to make changes where (Aboriginal heritage laws) need to change” in a sign the legislation could be reworked.
The backlash to the laws from farmers comes as the federal government mulls an options paper for a legislated federal framework for cultural heritage protections. One option includes the creation of another national body which would “appoint and empower local First Nations groups to make decisions about their cultural heritage”.”
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