Cultural Heritage Reform FAQs
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Aboriginal people do not support the Aboriginal Cultural Heritage Act 2021 (ACH Act) because:
● it is not strong enough to stop another disaster.
● they are not at the centre of decision-making about what happens on their land or to their significant cultural heritage sites.
● the final say over what happens to their sites still rests with the Aboriginal Affairs Minister [which resulted in the tragic destruction of rock shelters (or caves) – with evidence of human occupation dating back 46,000 years – in the Pilbara in 2020].
● it requires a giant leap of faith that miners, pastoralists and others will be prepared to reach agreements with Aboriginal people to avoid damaging Aboriginal cultural heritage.
● among other legal and cultural concerns, it fails to meet the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples.
● it does not represent best practice in the field of cultural heritage management or protection.
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Aboriginal people believe these new laws will not stop the ongoing destruction of WA’s Aboriginal cultural heritage and should have undergone further development in partnership with Traditional Owners before being introduced to Parliament.
This has been a once-in-a-generation opportunity to get it right for the benefit of all Australians. What’s important now is for government and industry to commit to working together in the true spirit of partnership – to co-design the policies, codes and regulations associated with the new laws to ensure the right balance between cultural heritage protection and economic benefit.
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Aboriginal people do not support the Aboriginal Cultural Heritage Act 2021 (ACH Act) because:
● it is not strong enough to stop another disaster.
● they are not at the centre of decision-making about what happens on their land or to their significant cultural heritage sites.
● the final say over what happens to their sites still rests with the Aboriginal Affairs Minister [which resulted in the tragic destruction of rock shelters (or caves) – with evidence of human occupation dating back 46,000 years – in the Pilbara in 2020].
● it requires a giant leap of faith that miners, pastoralists and others will be prepared to reach agreements with Aboriginal people to avoid damaging Aboriginal cultural heritage.
● among other legal and cultural concerns, it fails to meet the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples.
● it does not represent best practice in the field of cultural heritage management or protection.
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Aboriginal people do not support the Aboriginal Cultural Heritage Act 2021 (ACH Act) because:
● it is not strong enough to stop another disaster.
● they are not at the centre of decision-making about what happens on their land or to their significant cultural heritage sites.
● the final say over what happens to their sites still rests with the Aboriginal Affairs Minister [which resulted in the tragic destruction of rock shelters (or caves) – with evidence of human occupation dating back 46,000 years – in the Pilbara in 2020].
● it requires a giant leap of faith that miners, pastoralists and others will be prepared to reach agreements with Aboriginal people to avoid damaging Aboriginal cultural heritage.
● among other legal and cultural concerns, it fails to meet the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples.
● it does not represent best practice in the field of cultural heritage management or protection.
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Aboriginal people were not given sufficient opportunity to see a copy of the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) in its entirety before the State Government rushed it through Parliament in late 2021, despite issues highlighted by the United Nations’ Committee on the Elimination of Racial Discrimination (UNCERD).
Aboriginal people were invited to make submissions on the 2020 draft of the ACH Bill – but the State Government did not share a summary of submissions and key findings. Aboriginal people did not feel heard on areas of key concern, such as informed consent and the right to say no.
What's important now is that Aboriginal people wish to lead the process of establishing a co-design framework and how this should be implemented. This framework, in turn, will inform the associated statutory guidelines and regulations to be developed, as well as how the mandated five-year review process regarding the operation and effectiveness of the ACH Bill (as per section 309) should be undertaken.
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Attendance at the July 2021 briefing was strictly limited and the timeframe allowed just two hours, despite written requests before the meeting to address this. At this briefing, Aboriginal people were told about decisions that had been made but not asked what they wanted, nor did the briefing invite attendees to engage in meaningful and substantive discussion.
Since the introduction of ACH Act in December 2021, the State Government has engaged in consultation the act’s regulations and guidelines using a three-phased approach. While the government refers to it as co-design, it does not meet the true definition. Co-design means designing with people, not for people – it’s not just another word for consultation. A co-design workshop was held on 7 and 8 April 2022, discussing the best methods of using this approach.
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Attendance at the July 2021 briefing was strictly limited and the timeframe allowed just two hours, despite written requests before the meeting to address this. At this briefing, Aboriginal people were told about decisions that had been made but not asked what they wanted, nor did the briefing invite attendees to engage in meaningful and substantive discussion.
The McGowan Government is on record committing to a co-design process in relation to the codes and regulations associated with the ACH Bill. Traditional Owners wish to lead the process of establishing a co-design framework and how this should be implemented. This framework, in turn, will inform the associated statutory guidelines and regulations to be developed, as well as how the mandated five-year review process regarding the operation and effectiveness of the ACH Bill (as per section 309) should be undertaken.
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History shows that 143 Section 18 appeals were raised from 2017–2020 but only one was rejected. The Minister granted 142 mining consents with no right of appeal for Aboriginal people.
Since the 2020 destruction of the rock shelters (or caves) – with evidence of human occupation dating back 46,000 years – in the Pilbara, 23 Section 18 appeals have been raised and 22 mining consents were granted by the Minister, again with no right of appeal for Aboriginal people.
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Yes. Until the associated regulations and guidelines relating to the new laws are implemented, there should be a moratorium on any approvals relating to the harm and destruction of significant Aboriginal cultural heritage sites.
Adequate time and effort should be afforded to ensure Aboriginal people, government and other stakeholders can work together to co-design the related statutory guidelines and regulations and processes to support the new laws in practice. Ideally, a co-design framework with Aboriginal men and women – who have the knowledge and authority to represent each region of WA – should be involved in identifying the most appropriate approach to co-design for this aspect of the new laws. Aboriginal corporations likely to take on new responsibilities as a result of the new laws should also be closely consulted during drafting.
The Aboriginal Cultural Heritage Protection Co-Design Workshop was an important step in this endeavour.
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Despite the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) being passed through WA Parliament in late 2021, Traditional Owners remain determined to have their voices heard on how the act – and, importantly, the extensive associated codes, guidelines and regulations in development – will impact their significant sites.
In the true spirit of partnership, Aboriginal people, government, industry and other relevant stakeholders should be working together together to co-design the regulations, policies and processes to support the implementation of the new laws. The State Government is currently going through this process.
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It comes down to the difference between co-design and consultation. When the State Government refers to “co-design” it really only means consultation. True co-design is designing with people, not for people – consultation is purely taking feedback from people, then making a decision without necessarily checking to see if those people are happy with that decision.
The State Government does not have a good track record on this front. Note that at the July 2021 briefing for the ACH Bill, Aboriginal people were told about decisions that had been made – but not asked what they wanted, nor were attendees engaged in a meaningful and substantive discussion.
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We must protect the world’s oldest living continuous culture. We must respect the authority of Aboriginal people and their strong cultural responsibility to protect and care for Country and significant sites. They must have the final say on what happens to their cultural heritage.
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The United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) principles require governments to obtain the free, prior and informed consent of Indigenous peoples before adopting and implementing policies which may affect them.
While the new laws require Traditional Owners to be informed about matters pertaining to their cultural heritage, they do not require their consent. When one party (i.e. Traditional Owners) cannot say no and have it mean no – but another party (i.e. proponents) can say no and rely on the Minister to approve their application – true consent cannot occur.
The precedent of section 18 Ministerial approvals under the previous Aboriginal Heritage Act 1972 does not provide any certainty for Traditional Owners that their heritage places will be protected. During the agreement-making process, which occurs in an already asymmetric power relationship, Traditional Owners are incentivised (i.e. co-erced) to consent, as something is better than the alternative of nothing.
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Modernising Aboriginal cultural heritage legislation in WA is the right thing to do. We need new laws that are strong enough to stop another disaster like the 2020 destruction of 46,000-year-old-rock caves in the Pilbara, and others like it.
Without proper reform, irreplaceable Aboriginal cultural heritage sites, some dating back tens of thousands of years, will continue to be destroyed every day. It’s important, however, that we take this once-in-a-generation opportunity to get it right for the benefit of all Australians. We need laws and associated guidelines and regulations that protect and allow us to celebrate Aboriginal cultural heritage together.
It’s important that Aboriginal people, government, industry and other relevant stakeholders work together, in the true spirit of partnership, to co-design not just the new laws, but also the associated regulatory guidelines and procedures that stop destruction of significant sites, and ensure the right balance between Aboriginal cultural heritage protection and economic benefit.
A genuine co-design process would ensure the new laws and associated policies, guidelines and regulations can’t be created or changed without authentic, sustained engagement with Aboriginal people.
The planned Aboriginal Cultural Heritage Protection Co-Design Workshop will be the first step in this important (and far longer-term) endeavour.
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No. Proponents (e.g. mining companies) cannot avoid engaging with Traditional Owners prior to works that may significantly impact Aboriginal cultural heritage places. Proponents are required to consult with the Local Aboriginal Cultural Heritage Services (LACHS) to negotiate an Aboriginal Cultural Heritage Management Plan (ACHMP) prior to ‘Tier 3’ activities. However, at lower levels (i.e. ‘Tier 1’ and exempt activities) they may be able to avoid engaging with Traditional Owners prior to the works, and ‘Tier 2’ activities only require notification to the LACHS with time (duration as yet unknown) to provide comment before applying for a permit. These “tiers” are yet to be defined, however, Tier 3 activities are likely to include mining and exploration; while Tiers 1 and 2 are likely to involve activities which involve less physical ground impact (e.g. Tier 2 might include rock chipping or activities using handheld tools).
The WA State Government has indicated that a co-design process – or at least consultation – will be carried out in relation to formulating these categories in regulations or guidelines; further highlighting the importance of co-design of the regulations or guidelines for Traditional Owners.
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Shareholders can require proponents (e.g. mining companies) to include a detailed analysis of Aboriginal engagement and heritage protection in their corporate social governance reporting. This should include clearly articulated statistics regarding the number of Aboriginal cultural heritage sites impacted and those that were avoided. The numbers of consent-based Aboriginal Cultural Heritage Management Plans (ACHMPs), versus those that were imposed by the Aboriginal Affairs Minister over the objections of Traditional Owners, should also be reported. Investors can then choose whether the reported standards align with the ethical principles to which they subscribe. Shareholders can also petition proponents to improve these standards via Annual General Meetings and other mechanisms.
In December 2021, we welcomed the Australian Council of Superannuation Investors release of a significant research report, and resulting company engagement, with Aboriginal People that discusses why it makes sound business sense to build long-term, constructive and mutually beneficial relationships with Aboriginal people – and how this can be achieved.
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There are about 70 Prescribed Bodies Corporate (PBCs) currently registered in WA, and the level of resourcing available to these organisations varies significantly. Some can house their own internal heritage teams, while others have no staff at all and rely on up to just $50,000 of funding from the Federal Government per year to meet their basic compliance requirements.
The new laws will place significant administrative burdens on PBCs, so they will need ongoing funding to establish their heritage teams and meet their statutory requirements.
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Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs) advocate on behalf of the views of their clients: the Traditional Owners of the regions in which they operate.