Aboriginal groups are vigorously opposed to government reform efforts, leaving challenges for industry.
If the McGowan government thought the introduction of its Aboriginal Cultural Heritage Bill to state parliament would be welcomed, it must be sorely disappointed.
The Bill is designed to replace the Aboriginal Heritage Act, which dates from 1972 and includes the controversial section 18 approvals process that led to the destruction of Juukan Gorge.
Premier Mark McGowan insists his government is putting in place the strongest and most protective Aboriginal heritage laws in the country.
Yet the government has been roundly condemned, both for the way it introduced the Bill to parliament and the substance of its reforms.
The Bill, introduced with less than 24 hours’ notice, contained one big surprise.
The power to appeal ministerial decisions to the State Administrative Tribunal, included in earlier drafts, had been removed.
Much of the criticism has focused on this aspect but there is also an emerging awareness of the complex reform task that will follow passage of the Bill.
The criticism has been led by the big land councils, some facing a lesser role under the new regime, which devolves authority to prescribed bodies corporate (PBCs).
Banjima Native Title Aboriginal Corporation vice-chair Slim Parker said traditional owners felt let down and disrespected by the state government.
“It is a breach of trust and respect to not allow us time to review and understand a Bill that still appears to be an approvals process to enable development,” Mr Parker said.
“Premier, you know very well you developed the bill without giving due regard and respect to the people who will personally be affected.”
“We have repeatedly called on the McGowan government to pause this Bill and make the changes required to ensure Aboriginal heritage is protected,” he said.
“By ignoring our concerns, the McGowan government has treated Aboriginal people beneath contempt.”
KLC chair Anthony Watson said the disrespect shown by the government was typical of the attitude that led to heritage destruction in the first place.
“Aboriginal people are ‘included’ in the process, only to be left without any influence over the outcome,” Mr Watson told Business News.
Her aim was to work with government and industry as equal players to create laws with the right balance between approving development and protecting cultural sites and country.
“But it seems clear to me today, the government doesn’t want that,” Ms Eaton said.
“Firstly, we should be celebrating the new Bill that is replacing 49-year-old legislation that gave all the power and rights to developers,” he said.
“It puts the prescribed bodies corporate in control,” he said.
“That means developers must engage directly with the people who have the connections to country and the knowledge to undertake heritage surveys.”
He also commended removal of the section 18 approvals process.
“Gaining approval to disturb Aboriginal heritage sites – as occurred under section 18 of the existing Act – would be more difficult when the new Bill took effect,” he said.
“This change is a positive step forward.”
The government has been working on the new Bill for more than three years.
Its reform efforts have come after multiple failed attempts by previous governments to modernise the 1972 legislation.
The extensive consultation has included releasing a draft last year and holding further workshops in recent months to outline the latest changes.
Yet the government left itself open to criticism by introducing the latest draft to parliament with less than a day’s notice.
YMAC chief executive Simon Hawkins said the Bill, as it was presented in parliament last week, was not made available in its entirety until the day before it was introduced.
“While some amendments to the 2020 version had been shared, these were not provided in context,” he said.
“Now that we have had some time to review what has been introduced, we are discovering additional issues and amendments that were never included in any information shared by the government.”
Mr Hawkins accepted there were marginal improvements in the current Bill compared to the 1972 Act, but said that was not a difficult task.
“We are not willing to accept changes that still don’t meet basic standards and certainly do not put Aboriginal people front and centre when it comes to matters pertaining to their cultural heritage,” he said.
Mr Hawkins said the government’s approach did not serve the interests of transparency or genuine consultation.
“If the government believes the Bill to be as progressive as it claims, why not give traditional owner groups and the organisations that support them sufficient time to review it in full before introducing it to parliament?” he asked.
Opposition leader Mia Davies has also challenged the government.
“Just one day after ramming through electoral reform, the McGowan government is doing the same thing with this very important Bill,” Ms Davies said earlier this month.
“I question why, with such important legislation, they are refusing to follow normal processes and give the opposition and stakeholders the courtesy to review and prepare to contribute to the debate.”
Activist superannuation funds, led by industry fund HESTA, have added their voice to the criticism.
“There is emerging consensus among representatives of First Nations peoples and the responsible investment industry that this version of the WA Bill sets the bar below international standards and will not prevent another Juukan Gorge,” head of impact Mary Delahunty said.
HESTA, which manages $64 billion on behalf of more than 900,000 Australians, is not new to the issue.
It led the campaign that forced Rio Tinto to sack three top executives following the Juukan Gorge destruction, after the company’s initial review concluded nobody was to blame.
Mr McGowan insists the government is doing the right thing.
“The amendments to the draft legislation were a result of consultation with Aboriginal groups,” the premier told parliament after the Bill was introduced.
“Eventually, governments have to act.
“We cannot continue just to consult and allow these matters to pass into history as past governments have done.
“Our view is that the time for action is now.”
Mr McGowan has described the new Bill as the most progressive cultural heritage legislation in the country.
“It mandates agreement-making with traditional owners, in line with Native Title laws, and allows Aboriginal people to negotiate better outcomes for projects on their lands,” he said.
The government also says the Bill embeds the principles of free, prior and informed consent in its agreement-making processes.
This means there must be full disclosure of feasible alternative options for proposed projects to ensure traditional owners’ consent is fully informed.
The Bill provides that consent must be given voluntarily and the process cannot involve any coercion, intimidation or manipulation.
Mr Hawkins describes these claims as highly overstated and says any positive outcomes remain reliant on the goodwill and integrity of individual proponents, and not as a result of the Bill the government has introduced.
The Bill proposes a tiered review system under which mining companies and other project developers who want to “interfere” with Aboriginal heritage will have to operate.
The first step is to engage with local traditional owners through their prescribed body corporate.
The responsibilities of PBCs include the establishment of local Aboriginal cultural heritage services.
Sitting above them will be a new Aboriginal Cultural Heritage Council, to be appointed by the Aboriginal affairs minister.
In cases where the parties cannot agree, the minister will make a final decision.
This includes a requirement for the decision and the supporting reasons to be published.
However, the lack of any right of appeal has angered many Aboriginal groups.
KLC’s Mr Garstone was particularly critical, saying successive governments have used the current law to approve the destruction of more than 1,000 heritage sites.
“The state government has proved it is too close to industry and too dependent on royalties to be objective and transparent when it comes to matters concerning Aboriginal heritage,” Mr Garstone said.
Mr Parker said nothing substantive had changed from the section 18 process. “It is the minister, or people selected by the minister, who have the final say as to whether our heritage will be destroyed,” he said.
“It is the minister who decides who will sit on the Aboriginal Cultural Heritage Council.
“Nothing changes with this legislation; we continue to be controlled by government.”
Slim Parker is among many critics who accuse the government of a lack of respect. Photo: Luke Sweet, Aboriginal Heritage Action Alliance
Mr Parker said it was not only Aboriginal people who could be affected.
“This Act should be of concern to all Western Australians, industry, investors, employees on projects, and employers,” he said.
“Why? Because people’s ‘licence to operate’ on country is put at risk by this Act prohibiting traditional owners from having free consent.”
Mr Woodley, again, has a more supportive view.
“First Nations peoples, with the government, hold a unique opportunity following this Bill when placing our cultural heritage at the centre of discussions, when it comes to improving the awareness of industry and developers, who want to impact our country,” Mr Woodley told Business News.
Mr Woodley said it was important to put serious thought into the issue of power of veto.
“We need to be clear, the burden of having final say comes with a lot of pressure and confrontation for all the wrong reasons,” he said.
“We also need to be realistic and practical in accepting the role of government.
“Governments have a responsibility for First Nations people, but they are not going to give up their powers to anyone when it comes to representing the public’s best interest.”
Mr Woodley said another positive in the new Bill was the capacity to have areas of very high heritage value designated as ‘protected’ areas.
Both houses of parliament will be required to approve the repeal of a protected area or any amendments to reduce the size of a protected area.
Mining industry groups have welcomed the introduction of the new Bill while also highlighting the challenges ahead.
Chamber of Minerals and Energy of Western Australia chief executive Paul Everingham said the Bill provided an opportunity for WA to have the most modern and robust framework for Aboriginal heritage management.
“This latest iteration of the Aboriginal Cultural Heritage Bill is one that WA’s mining and resources sector can work with,” Mr Everingham said.
“That said, this new framework will require significant adjustment from all stakeholders.
“Change of this scale is complex, and the challenge ahead to deliver on the potential set out in the Bill should not be underestimated.”
Paul Everingham says the real test will come after the Bill has passed through parliament. Photo: David Henry
Mr Everingham said passage of the legislation was just the first step.
“The real test is coming in implementation, including resolving important detail in supporting co-design of regulations and the enabling of new bodies created by the Bill to be properly equipped for this landmark reform to succeed,” he said.
Mr Everingham said additional and sustainable funding commitments would be needed to help boost the capacity of existing Aboriginal organisations.
“Critical to the interest of mineral explorers will be determining the new requirements for exploration activities, the arrangements and costs for heritage surveys and other services, and the timeframes for consultation and agreement-making processes,” Mr Pearce told Business News.
“These changes will be much more demanding on mining and exploration companies and will slow the process of exploration and development.”
Mr Pearce echoed the call for increased government funding for PBCs for support in undertaking their new responsibilities.
“While much about this new process and how it will work is still uncertain, the mining and mineral exploration industry will approach these changes constructively and continue to work closely with traditional owners,” he said.
Banjima’s Mr Parker also raised concern about the burden to be placed on PBCs under the proposed new regime.
“PBCs need clarity on fees, funding and support to carry out these requirements,” Mr Parker said.
“In its present form there is no clarity for either PBCs or mining companies on such costs, or timeframes to complete works.”
Banjima, and other Aboriginal groups, have started bolstering their capability by adding independent directors to their boards.
The General Gumala Foundation led the way among large Aboriginal groups when it appointed three independent directors, led by chair Brendon Grylls.
These and other Aboriginal groups face a more complex future, with mining companies keen to establish more effective working relationships.
Fortescue has announced a high-level framework agreement with members of the Wintawari Guruma Aboriginal Corporation, the prescribed body corporate for the Eastern Guruma people.
This agreement included a potential $500 million mining joint venture in the Pilbara.
Rio Tinto has been working for the better part of a year to establish a co-management model with PKKP Aboriginal Corporation, which represents the Puutu Kunti Kurrama and Pinikura people who were at the centre of the Juukan Gorge controversy.
Rio has gone to extraordinary lengths to rebuild its relationships with Aboriginal groups.
It has started discussions with 10 Pilbara traditional owner groups and their representatives to modernise existing agreements.
The miner is conducting a detailed review of heritage sites it manages in the Pilbara to ensure there are no other sites of exceptional cultural significance (like Juukan Gorge) within its existing mine plans.
Rio disclosed recently it has reviewed 2,205 heritage sites across different planning horizons. This includes all sites for 2021 and 2022.
It has ongoing engagement with traditional owners regarding current and proposed plans for mining activities. This includes working through development scenarios and adjusting mine plans where required.
Rio has acknowledged that this year’s production has been reduced by around 2 million tonnes because mine plans have been amended, with buffers and exclusion zones incorporated to protect areas of high cultural significance.
The miner has also modified its blasting activity to create smaller, more controlled blasts to minimise vibration and protect heritage sites.
This has affected mining productivity and materials handling. Rio has also disclosed it is not relying on section 18 approvals granted under the existing Act.
Instead, it is re-consulting in relation to granted section 18 approvals.
With the spotlight clearly on Rio, it has been far more transparent and forthcoming in its disclosures than other big miners.
However, it is safe to assume all big miners will be making similar adjustments to their operations and strategy.
This is the new reality in the post-Juukan Gorge world.
Aboriginal groups may question how much legal authority they will have under the state government’s new Bill, but what they have in spades is moral authority.
No miner wants to get offside with Aboriginal groups, especially when giant superannuation funds such as HESTA are applying more focus to the environmental, social and governance (ESG) credentials of companies they invest in.