In response to the Western Australian Minister for Aboriginal Affairs Peter Collier’s recent statements rejecting criticisms of the State Government’s proposed changes to the Aboriginal Heritage Act, the Aboriginal Heritage Action Alliance (AHAA) are astounded that the Minister still does not recognise the depth and breadth of community and expert opposition to the amendments.

By Clayton Lewis, Teri O’Neil, Liz Vaughan and Natasha Busher.

Collier AHAA

Minister for Aboriginal Affairs Peter Collier. Photo credit: Perth Now.

Minister Collier’s statements are included in a recent ABC News report [1], where he defends criticisms made of the proposed changes, stating that “the legislation does provide avenues for Aboriginal consultation… as far as the CEO of the Department of Aboriginal Affairs is concerned, it does give him authority with regards to heritage applications, however there is a considerable process of consultation with Aboriginal people before it gets to that point”.

This is empty rhetoric that blatantly disregards critical reviews made by the likes of former Federal Aboriginal Affairs Minister Ian Viner [2], renowned Mabo native title lawyer Greg McIntyre [3], the Law Society of WA [4], the Australian Archaeological Association [5] and the Australian Anthropological Society [6]. In advice given to AHAA, Ian Viner AO QC advised that:

“The fundamental objection is to the substitution of the CEO for the present Advisory Committee and the untrammelled bureaucratic power then given to the CEO over the lifeblood of sustained recognition of aboriginal cultural heritage and, therefore, the long term sustainability of aboriginal traditional law and custom. Destruction of the places and objects of law and culture is the first step to the ultimate destruction of that law and custom. “

The Minister’s words do not match his actions. Under his leadership, 23 sacred sites have been removed from the State’s heritage register without consultation with Traditional Owners, merely a notification letter in some instances. The number of sites given legal protection has decreased 12 fold since 2011 [7], and 90% of the 2014 public submissions on the changes to the Aboriginal Heritage Act were negative [8].  The Ministers recent defence of the CEO’s ultimate power totally contradicts expert and professional critiques, and indicates that Minister Collier does not know what is going on in his own department, who AHAA assert are ill-equipped for the vast new powers the Aboriginal Heritage Act Amendment Bill will provide them with.

Given the Department of Aboriginal Affairs recent track-record of failing to adequately manage Aboriginal cultural heritage in Western Australia, how can the Minister expect the public, in particular Traditional Owners across the state, to have faith in a government agency, or worse, an individual, to be responsible for the protection and management of cultural sites when it has been proven in the Supreme Court with the Port Hedland test case win [9] that they have been applying flawed legal advice, resulting in possibly hundreds of sites left unprotected from land development [10].

Another incident where this appears to be occurring is Murujuga (the Burrup Peninsula). This area is recognised internationally for its intense concentration of ancient Aboriginal rock-art. And yet, it has been the subject of on-going disturbance as a result of government supported industrial pursuits, and, most recently, was one of the 23 sacred sites to be removed from the State’s register (Site ID 23323). To liken this to other international sites, imagine a government approving the destruction of Stonehenge, or the pyramids, to accommodate a mining expansion… Imagine that decision potentially being at the sole discretion of one individual bureaucrat… What would the outcry be then? Yet this is what the proposed changes to the Aboriginal Heritage Act would potentially allow for. It appears that the Western Australian State Government is more occupied with fast-tracking development applications, than it is with responsibly assessing and conserving irreplaceable heritage sites.

AHAA agrees that the existing Aboriginal Heritage Act needs reviewing, however, the current proposed changes are not appropriate and should not be passed in Parliament. We, and many others, are not opposing the changes for the sake of protest or antagonism, but are simply saying they are not the answer to balancing the need for development with the protection of Aboriginal cultural heritage sites in Western Australia. Aboriginal people across Western Australia have worked with both government and industry to facilitate some of the biggest mining expansions and urban developments the state has ever experienced, and yet now, they are being undermined throughout this process. Consultation with Aboriginal people to-date has been limited and disrespectful, but that seems to be no deterrent to Minister Collier who just wants to “push this much-needed legislation through Parliament”. As Ian Viner AO QC states;

“if passed I would expect protection of heritage in Western Australia to be driven to Commonwealth environmental and heritage legislation and more objections channeled through the Native Title Act (“NTA”). The irony is that that would be more costly and time consuming for prospectors, miners, developers and the State Government”

AHAA continue to oppose the proposed amendment bill currently before Parliament, and insist that it be withdrawn and referred to a Select Committee for a more suitable review. We request the Department of Aboriginal Affairs, or Minister Collier, clearly state why they continue to defend and attempt to progress the proposed changes to the Aboriginal Heritage Act despite the strong evidence-base that it is not good legislation but is;

“…not only offensive to Aboriginal heritage but to modern international approach[es] to the protection and preservation of indigenous heritage and the cultural traditions of indigenous people for the benefit of the whole of a national society…” Ian Viner AO QC.

[1] “Aboriginal Heritage Act: WA minister rejects criticisms changes give too much power to single bureaucrat”, posted Tuesday 26th May, 2015 on ABC News.

[2] Ian Viners AO advice to Clayton Lewis of the AHAA.

[3] “Nationals MPs unlikely to support changes to the Aboriginal Heritage Act”, posted Monday 25th, 2015 on ABC News.

[4] LSWA 2014 AHA submission

[5] 2014 AAA submission

[6] AAS 2015 open letter

[7] Statistics on site registration

[8] Of the 73 responses available for review on the DAA website 57* clearly criticise the proposed amendments and raises concerns regarding their potential impacts. This number does not include the 95 other submissions from individuals that are noted to be in similar opposition to the changes, but which are not available for review. Including the additional 95 individual submissions, this totals a solid 90% of public submissions being made against the proposed changes outlined in the Aboriginal Heritage Act Bill (AHAB). Those submissions that were fairly balanced in their views (n=4), or not as strongly worded in their opposition (n=4) have not been included in this total. Only 8 submissions were lodged with DAA that were supportive of the proposed changes. Despite this vast majority of submissions being highly critical of the exposure draft of the AHAB (June 2014), the subsequent Bill as presented to State Parliament in November 2014, was mostly unchanged.

[9] see “Aboriginal heritage test case overturns decision to deregister Port Hedland site” posted Wednesday 1st April, 2015 on ABC News.

[10] QWON Robin Chapple to Peter Collier, Tuesday 5th May, Legislative Council, C468

Prepared by Clayton Lewis, Teri O’Neil, Liz Vaughan and Natasha Busher of AHAA.

For further comment contact AHAA media contacts:

Clayton Lewis 0498 002 812

Liz Vaughan 0400 993 907