Protect Australia’s Cultural Heritage

Protect Aboriginal Cultural Heritage FAQs



Cultural Heritage Reform FAQs

  • Why don't Aboriginal people support the current draft of the Aboriginal Cultural Heritage Bill?
    Aboriginal people do not support the draft Cultural Heritage Bill because: it's not strong enough to stop another disaster; the final say over what happens to Aboriginal sites still rests with the Minister - this resulted in the tragic destruction of 46,000-year-old rock caves; the Bill requires a giant leap of faith that miners, pastoralists and others will be prepared to reach agreements with Aboriginal people that avoid damaging Australia's cultural heritage; among other legal and cultural concerns, the draft Bill fails to meet the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples; and, the Bill does not represent 'best practice' in the field of cultural heritage management or protection.

     

  • Some Aboriginal people are calling for the Bill to be scrapped completely and start again. Is that your view?
    Aboriginal people believe the proposed new law will not stop the ongoing destruction of Australia's cultural heritage and should not be introduced to Parliament in its current form. We need to take this once-in-a-generation opportunity to get it right for the benefit of all Australians. What's important is working together in the true spirit of partnership to co-create a new law that ensures the right balance between heritage protection and economic benefit. And following the same approach to developing the regulations, policies and processes to support it.

     

  • The Aboriginal Affairs Minister says the central foundation of the new Bill was consultation, negotiation and agreement-making between Traditional Owners and Proponents. Why are Aboriginal people so opposed to it?
    The proposed new law (Aboriginal Cultural Heritage Act) 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 have not yet been developed. Aboriginal people do not support the draft Cultural Heritage Bill because: it's not strong enough to stop another disaster; the final say over what happens to Aboriginal sites rests with the Minister - this resulted in the tragic destruction of 46,000-year-old rock caves; the Bill requires a giant leap of faith that miners, pastoralists and others will be prepared to reach agreements with Aboriginal people that avoid damaging Australia's cultural heritage; among other legal and cultural concerns, the draft Bill fails to meet the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples; and, the Bill does not represent 'best practice' in the field of cultural heritage management or protection. 

     

  • The Aboriginal Affairs Minister says 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?
    The proposed new law (Aboriginal Cultural Heritage Act) 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 have not yet been developed. Aboriginal people do not support the draft Cultural Heritage Bill because: it's not strong enough to stop another disaster; the final say over what happens to Aboriginal sites rests with the Minister - this resulted in the tragic destruction of 46,000-year-old rock caves; the Bill requires a giant leap of faith that miners, pastoralists and others will be prepared to reach agreements with Aboriginal people that avoid damaging Australia's cultural heritage; among other legal and cultural concerns, the draft Bill fails to meet the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples; and, the Bill does not represent 'best practice' in the field of cultural heritage management or protection. 

     

  • There's been a lot of talk about consultation - 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 are yet to see a copy of the current Bill the State Government wants to rush through Parliament. Aboriginal people were invited to make submissions on the 2020 draft but government has not shared a summary of submissions and key findings. Aboriginal people are not feeling heard on areas of key concern, such as informed consent and the right to say no. What's important is that we take this once-in-a-generation opportunity to get it right for the benefit of all Australians. We need a law that protects and allows us to celebrate this cultural heritage together.  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.

     

  • Has the proposed Aboriginal Cultural Heritage Bill been co-designed in true partnership between Aboriginal people and Government?
    No. Aboriginal people are yet to see a copy of the current Bill the State Government wants to rush through Parliament. The outcome of the submissions process has not been shared. In July 2021 Aboriginal people were invited to a Government briefing. They asked to see a copy of the draft Bill prior to the meeting but this request was ignored by Minister Dawson. The draft Bill was not provided at the briefing and has not been provided since. Attendance at the briefing was strictly limited, and the timeframe allowed just two hours, despite written requests prior to the meeting to address this. At the Government 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 Bill?
    Aboriginal people believe that the proposed Aboriginal Cultural Heritage Act will not stop the destruction of cultural heritage sites and should not be introduced to Parliament in its current form. Instead they want to sit down with Government and work together to co-create a new law that ensures the right balance between heritage protection and economic benefit.

     

  • Is it true that Aboriginal people have not seen the current draft of the Aboriginal Cultural Heritage Bill?
    Aboriginal people are yet to see a copy of the current Bill the State Government wants to rush through Parliament. Aboriginal people were invited to make submissions on the 2020 draft but government has not shared a summary of submissions and key findings. Aboriginal people are not feeling heard on areas of key concern, such as informed consent and the right to say no.
  • Isn't section 139 of the proposed Bill just a new section 18? A lawful way to empower the Minister to make decisions to harm or destroy Aboriginal cultural heritage against the express permission of Aboriginal people?
    Yes. Section 18 of the current Act allows the Aboriginal Affairs Minister to grant approvals to the owner of the land (such as mining companies) to “excavate, destroy, damage, conceal or in any way alter any Aboriginal site”. Section 139 of the proposed Bill is seen as a new section 18 which again puts the power of the final decision back to the Aboriginal Affairs Minister when traditional owners and landowners can’t agree. The WA Government has repeatedly defended that this would only occur in a dire situation. 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. "
  • Has the Government listened to Aboriginal people - shouldn't there be a moratorium on Section 18's while we get this reform sorted out?
    In the true spirit of partnership Aboriginal people and Government should work together to co-create the regulations, policies and processes to support the Aboriginal Cultural Heritage Act. Ideally a committee of Aboriginal men and women with the knowledge and the authority to represent each region of WA should be heavily involved in this. As well, those Aboriginal corporations likely to take on new responsibilities as a result of the Bill need to be closely consulted during drafting. However, before these regulations, policies and processes are developed, we must approach co-creating the new law the same way, to ensure the right balance between heritage protection and economic benefit. To stop the destruction without stopping development."
  • The policies, processes and guidelines to support the Aboriginal Cultural Heritage Act are yet to be developed. How should this happen? Who should develop them?

    In the true spirit of partnership Aboriginal people and Government should work together to co-create the regulations, policies and processes to support the Aboriginal Cultural Heritage Act. Ideally a committee of Aboriginal men and women with the knowledge and the authority to represent each region of WA should be heavily involved in this. As well, those Aboriginal corporations likely to take on new responsibilities as a result of the Bill need to be closely consulted during drafting.

    However, before these regulations, policies and processes are developed, we must approach co-creating the new law the same way, to ensure the right balance between heritage protection and economic benefit. To stop the destruction without stopping development.

  • The Aboriginal Affairs Minister 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?
    Very little information has been provided about the as yet unwritten regulations, policies and processes to support the Bill. What's important is working together in the true spirit of partnership to co-create a new law that ensures the right balance between heritage protection and economic benefit. And following the same approach to developing the regulations and processes that will be applied in implementation to ensure they can't override the Bill or be changed in the future without authentic, sustained engagement between Aboriginal people and Government.
  • What are the standards set out by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)? 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. And the world is watching on. 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 Western Australia stack up in terms of the rights of Indigenous peoples and our commitment to UNDRIP and Closing the Gap?

    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. The Aboriginal Cultural Heritage Bill requires Traditional Owners to be informed about matters pertaining to their cultural heritage but does not require their consent. When one party cannot say no and have it mean no (Traditional Owners) and Proponents can say no and rely on the Minister to approve their application, true consent cannot occur.

    The precedent of s18 approvals under the current Aboriginal Heritage Act by the Minister 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 (coerced) to consent as something is better than the alternative – nothing.

  • Why not just stick with the current Act (1972) if agreement cannot be reached on the new Bill?
    Modernising Aboriginal cultural heritage legislation in WA is the right thing to do for the benefit of all Australians. We need a law that is 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 cultural heritage, some dating back tens of thousands of years, will continue to be destroyed every day. It's important that we take this once-in-a-generation opportunity to get it right for the benefit of all Australians. We need a law that protects and allows us to celebrate this cultural heritage together. And the way to achieve that is for Aboriginal people and Government to work together in true partnership to co-create a new law that will stop the destruction and ensure the right balance between heritage protection and economic benefit.
  • Does the new Bill 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 ACHMP prior to Tier 3 activities. However, at lower levels (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 a time (as yet unknown) to provide comments before applying for a permit. These “Tiers” are yet to be defined but Tier 3 activities are likely to include mining and exploration. Tier 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 hand held tools. The government has indicated that a co-design or at least consultation process 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 ACHMPs versus those that were imposed by the Minister 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 AGMs and other mechanisms.

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

    There are 70 Prescribed Bodies Corporate (PBCs) currently registered in Western Australia. The level of resourcing available to these organisations varies significantly. Some can house their own internal heritage team, while others have no staff at all and rely on up to $50k of funding from the Federal Government per year to meet their basic compliance requirements. The Aboriginal Cultural Heritage Bill (ACHB) places significant administrative burdens on PBCs, so they will need ongoing funding to establish their heritage teams and meet their statutory requirements under the ACHB.

  • What is the NTRBs role in all this?

    Native Title Representative Bodies (NTRBs) are service providers and advocate on behalf of the views of their clients – the Traditional Owners of the regions in which the NTRB operates.