WA Aboriginal Heritage Laws Proposed Changes Facing Strong Criticism

Friday 22 August 2014 @ 12.29 p.m. | Legal Research | Trade & Commerce

The WA State Government in June 2014 released draft amendments which it proposed be made to the Aboriginal Heritage Act 1972 (WA No 53 of 1972 - the 1972 Act) (see the Aboriginal Heritage Amendment Bill).

The release of the draft amendments followed a review of the 1972 Act that started back in May 2011. A review which was been followed by a lengthy period of consultation. However, even with the lengthy consultation, it is reported that the changes proposed have been labelled discriminatory and referred to as a source of frustration and concern for Aboriginal people and interested parties, and as the ABC reported, the draft has found itself :

".  .  .  amid calls for them [ the draft amendments] to be dumped and the [1972 Act]  rewritten".

The Key Objection

A key area of amendment which has caused much objection is the authority to be given to the Chief Executive Officer of the Department of Aboriginal Affairs (the CEO) to issue a declaration that “there is no Aboriginal site on the land” a declaration that may be at “the CEO’s own initiative”. A declaration which as The Conversation reports means, ". . . there is no administrative tribunal mechanism for reviewing the CEO’s decision".

Under the current legislation, the Aboriginal Cultural Material Committee (the ACMC) established under the 1972 Act, provides for advice and recommendations to be made to the Aboriginal Affairs Minister on the significance and value of heritage sites. However, as the Minister Mr Peter Collier revealed when the draft Bill was released in June 2014, the focus is now on fast tracking the authority for permits handed to CEO, the Minister reported as saying:

". . . the pace of economic development in recent years, particularly in mining and construction, had highlighted inadequacies in the current legislation".

In the Minister's view, the laws proposed by the draft Bill would speed up the approval process for mining and other development by giving the CEO "expedited" or "fast track" authority to declare whether or not an Aboriginal heritage site existed. As well, the CEO would be able to issue land use permits when they decided a site would not be "significantly damaged or altered".

The ABC reports that submissions on the proposed draft amendments have been:  ".  .  . overwhelmingly critical of the proposed changes, in particular the new fast track approvals process".

Response in the Submissions

The ABC reports that the Kimberley Land Council (the KLC) warned the proposed amendments would "disenfranchise Indigenous people" by "focusing power in the hands of one bureaucrat - the Department of Aboriginal Affairs' chief executive officer". It is further reported that the KLC and  other land councils, various Aboriginal corporations, the WA Law Society  and various individuals and anthropologists have argued the new process would "largely cut out Aboriginal people".

The WA Law Society submission points out the proposed amendments would strip the ACMC of its "evaluative role" and "predominantly shifted power to the CEO", an officer who would not be obliged to consult with Aboriginal people or to apply anthropological expertise. Further, it also points out that mining and other companies could appeal decisions but no similar statutory right of review was provided for Aboriginal custodians or traditional owners, the submission stating:

"The lack of such a right again negates the claim that these amendments are increasing the strength of the voice of Aboriginal people or that amendments increase accountability,  . . ."

The Goldfields Land and Sea Council is reported as pointing out in its submission that the WA Government had not specified the process to be followed by the CEO in making decisions which it said raised concerns about "the validity of any decision made". Saying also that it remained that:

". . . the most significant issue raised by the proposed amendments to the Act is that the regulations that will govern how it will operate are not yet available, . . ."

However, it should be noted that the Aboriginal Affairs Department's explanatory fact sheet stated, that standards would be set out regulating what the CEO would "need to have regard to in issuing a declaration or giving a permit .  .  .", stating also that:

"This will enable greater certainty for Aboriginal people that decisions will be made by the CEO are fair and reliable, not mysterious and inconsistent,  . . ."

The ABC reported the comments of National Native Title Council CEO Brian Wyatt as being that the changes were " .  .  . not primarily directed at heritage protection, .  .  ." and that there was ". . . no real will or desire . . ." by the WA government to protect heritage, ". . . it's all about streamlining the processes of development".

Generally, submissions on the changes proposed by the draft legislation see it as a proposal to weaken the Act and the protection of Aboriginal heritage, as The Conversation reports:

"The Act has a poor record of protecting Aboriginal heritage. Only in rare cases has a determined group of Aboriginal people been able to use it to prevent damage to their heritage. With the proposed legislative change, even such slim hope may be lost."

The Conversation quotes Blaze Kwaymullina and Sally Morganwho who say that:

"the government’s archaic approach to Aboriginal heritage 'does not acknowledge Aboriginal culture as a living and ongoing concern, an approach sometimes described as ‘museum mentality’'".


The actual Bill to which the draft relates is not yet introduced into the WA parliament and it will be interesting to see how the feedback in the submissions received has been considered by the WA Aboriginal Affairs Department when the 42 year old 1972 Act actually comes before the WA parliament for amendment.

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