Protect Australia’s Cultural Heritage



Cultural Heritage Reform FAQs

  • Why don’t Aboriginal people support the Aboriginal Cultural Heritage Bill 2021?

    Aboriginal people do not support the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) 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 Minister (which resulted in the tragic destruction of 46,000-year-old rock caves 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 that 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; and

           ● it does not represent ‘best practice’ in the field of cultural heritage management or protection.

  • Some Aboriginal people called for the Aboriginal Cultural Heritage Bill 2021 to be scrapped completely and rewritten. Is that your view?
    Aboriginal people believe the 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 that will ensure the right balance between cultural heritage protection and economic benefit.
  • The WA Minister for Aboriginal Affairs has said the central foundation of the new laws was consultation, negotiation and agreement-making between Traditional Owners and proponents. Why are Aboriginal people so opposed to it?

    The new laws won’t stop the destruction of Aboriginal cultural heritage sites. This is further complicated by the fact that the regulations, policies and processes that will be applied in implementation are envisaged to be extensive and have not yet been developed.

     

    Aboriginal people do not support the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) 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 Minister (which resulted in the tragic destruction of 46,000-year-old rock caves 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 that 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; and

          ●  it does not represent ‘best practice’ in the field of cultural heritage management or protection.

  • The WA Minister for Aboriginal Affairs has said that fundamentally, this legislation will ensure Aboriginal people can define and assert the significance of their cultural heritage and, with this authority, be able to negotiate agreements with miners and other land users. Isn’t that what Aboriginal people want? Why are Aboriginal people so opposed to it?

    Aboriginal people do not support the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) 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 Minister (which resulted in the tragic destruction of 46,000-year-old rock caves 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 that 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; and

           ● it does not represent ‘best practice’ in the field of cultural heritage management or protection.

     

  • There's been a lot of talk about ‘consultation’ – the WA State Government says it's been consulting with Aboriginal people, but Aboriginal people don't see things the same way. What's happened here?
     

    Aboriginal people were not given sufficient opportunity to see a copy of the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) in its entirety prior to the WA State Government rushing it through Parliament in late-2021 and 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 WA 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 (per section 309) should be undertaken.

     

    We need laws and associated guidelines and regulations that protect and allow us to celebrate Aboriginal cultural heritage together. A co-design approach, coupled with the principles of Heritage Consent, will provide a clear regulatory framework based on substantive, authentic and sustained engagement between Aboriginal people, government and industry, to achieve the right balance between heritage protection and economic outcomes.

  • Have the new laws been co-designed in true partnership between Aboriginal people and government?
     

    No. Aboriginal people were not given sufficient opportunity to see a copy of the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) in its entirety prior to the WA State Government rushing it through Parliament in late-2021. The outcomes of the preceding submissions process were not shared. In July 2021, Aboriginal people were invited to a WA State Government briefing. They asked to see a copy of the draft ACH Bill prior to the meeting but this request was ignored. The draft ACH Bill was not provided at the briefing; it was not shared until the day prior to it being introduced to Parliament.

     

    Further, attendance at the July 2021 briefing was strictly limited, and the timeframe allowed just two hours, despite written requests prior to 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. 

  • What do Aboriginal people want to see happen with the new laws?

    No. Aboriginal people were not given sufficient opportunity to see a copy of the Aboriginal Cultural Heritage Bill 2021 (ACH Bill) in its entirety prior to the WA State Government rushing it through Parliament in late-2021. The outcomes of the preceding submissions process were not shared. In July 2021, Aboriginal people were invited to a WA State Government briefing. They asked to see a copy of the draft ACH Bill prior to the meeting but this request was ignored. The draft ACH Bill was not provided at the briefing; it was not shared until the day prior to it being introduced to Parliament.

     

    Further, attendance at the July 2021 briefing was strictly limited, and the timeframe allowed just two hours, despite written requests prior to 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 (per section 309) should be undertaken.

  • Is it true that the Aboriginal Cultural Heritage Bill 2021 still includes a lawful way to empower the WA Minister for Aboriginal Affairs to make decisions to harm or destroy Aboriginal cultural heritage against the express permission of Aboriginal people – similar to what was ‘section 18’ of the previous Aboriginal Heritage Act 1972?

    Yes. Section 18 of the previous act allowed the WA Minister for Aboriginal Affairs to grant approval to the “owner” of the land (such as mining companies) to “excavate, destroy, damage, conceal or in any way alter any Aboriginal site”.

     

    In the Aboriginal Cultural Heritage Bill 2021 (ACH Bill), sections 147 through 165 provide a process where the WA Minister for Aboriginal Affairs can eventually authorise a plan that may damage cultural heritage places and objects, with a similar effect to what was granted under ‘section 18’ of the previous act; again placing the power of final decision-making back with the Minister when Traditional Owners and landowners can’t agree.

     

     

    We accept that this is a moderate improvement on the old section 18 process, and the WA State Government has repeatedly asserted that this power would only be exercised in dire situations. However, history shows that one hundred and forty-three (143) section 18 applications were made between 2017-2020, and only one (1) was rejected: 142 mining consents were granted by the Minister, with no right of appeal for Aboriginal people. Since the 2020 destruction of the 46,000-year-old rock caves in the Pilbara, twenty-three (23) section 18 applications were made and all twenty-two (22) mining consents were granted by the Minister, with no right of appeal for Aboriginal people. 

    History shows that one hundred and forty three (143) Section 18 appeals were raised between 2017-2020 but only 1 was rejected. 142 mining consents were granted by the Minister, with no right of appeal for Aboriginal people.

    Since the 2020 destruction of the 46,000-year-old rock caves in the Pilbara twenty-three (23) Section 18 appeals were raised and 22 mining consents were granted by the Minister, with no right of appeal for Aboriginal people. ”

  • Shouldn’t there be a moratorium on ‘section 18’ approvals while we get this reform sorted out?

    Yes. Until 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 that involves Aboriginal men and women with 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. As well, those Aboriginal corporations likely to take on new responsibilities as a result of the new laws need to be closely consulted during drafting.

    The planned Aboriginal Cultural Heritage Protection Co-Design Workshop will be the first step in this important (and far longer-term) endeavour.

  • The policies, processes and guidelines to support the new laws are yet to be developed. How should this happen? Who should develop them?

    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 this – and, importantly, the extensive associated codes, guidelines and regulations still to be developed – will impact their significant sites.

     

    In the true spirit of partnership, Aboriginal people, government, industry and other relevant stakeholders should work together to co-design the regulations, policies, and processes to support the implementation of the new laws.

     

    The McGowan Government is on record committing to a co-design process in relation to the codes and regulations associated with the ACH Bill.

     

    To ensure the new laws achieve the right balance between Aboriginal cultural heritage protection and economic benefit, 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 (per section 309) should be undertaken.

     

    Ideally, a co-design framework that involves Aboriginal men and women with 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. As well, those Aboriginal corporations likely to take on new responsibilities as a result of the new laws need to be closely consulted during drafting.

     

    The planned Aboriginal Cultural Heritage Protection Co-Design Workshop will be the first step in this important (and far longer-term) endeavour.

  • The WA Minister for Aboriginal Affairs says Aboriginal people and key stakeholders will be closely engaged in the development and co-design of supporting policies, processes and guidelines. There seems to have been plenty of consultation – why are Aboriginal people saying this hasn’t happened?

    Drawing from best practice approaches undertaken elsewhere we already know that ‘consultation’ does not equate to ‘co-design’, and that legitimate co-design processes require continual collaboration and improvement and ensuring the right stakeholders are involved.

     

    Very little information has been provided about the as yet unwritten regulations, policies and processes that will support the new laws in practice. However, the McGowan Government is on record committing to a co-design process in relation to developing these supporting documents.

     

    It’s important that Aboriginal people, government, industry and other relevant stakeholders work together, in the true spirit of partnership, to co-design the regulations and processes that will be applied in the implementation of the new laws, to 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.

  • What are the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples? Is WA meeting its obligations?

    No. WA is failing to meet the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (including Free, Prior and Informed Consent). This was recently highlighted in a letter from the United Nations’ Committee on the Elimination of Racial Discrimination (UNCERD), which requested the Australian Government’s intervention in regard to the WA State Government’s Aboriginal Cultural Heritage Bill 2021 (ACH Bill) before it was passed in Parliament in late-2021.You can view the letter here

    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.

    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.

  • How does WA stack up in terms of the rights of Indigenous peoples and our commitment to United Nations Declaration on the Rights of Indigenous Peoples?

    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. coerced) to consent, as something is better than the alternative – nothing.

  • Why did we not just stick with the previous Aboriginal Heritage Act 1972 in WA?

    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.

  • Do the new laws allow mining companies to avoid direct engagement with Traditional Owners before passing projects?

    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.

  • How can shareholders use Aboriginal cultural heritage reputation and performance as a basis for making ethical-investment decisions?

    Shareholders can require proponents (e.g. mining companies) to include 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, as well as reporting the numbers of consent-based Aboriginal Cultural Heritage Management Plans (ACHMPs) versus those that were imposed by the WA Minister for Aboriginal Affairs over the objections of Traditional Owners. 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.

     

    Further, in December 2021, we welcomed the Australian Council of Superannuation Investors’ release of a significant research report and resulting Company Engagement with First Nations People which discusses why it makes sound business sense to build long-term, constructive and mutually beneficial relationships with First Nations people, and how this can be achieved.

     

     

  • $11 million seems like a decent amount of funding towards progress of the new laws, including $10 million to establish, administer and build capacity in the Local Aboriginal Cultural Heritage Services. Why isn't this enough?

    There are around 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.

  • What is the role of NTRBs/NTSPs in all this?

    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.