WA’s new Aboriginal heritage laws have been broadly welcomed but raised concerns about the capacity of Indigenous corporations to deliver on their new responsibilities.
The state government’s new Aboriginal heritage laws have been broadly welcomed but raised concerns about the capacity of Indigenous corporations to deliver on their new responsibilities.
The new laws have also been described by one major Aboriginal group as the “absolute minimum when it comes to heritage protection and management”.
PKKP Aboriginal Corporation chairman Terry Drage welcomed the intent of the Aboriginal Cultural Heritage Act and the associated guidelines, which were released last week.
“The new Act, while making significant improvements in the way of elevating Aboriginal decision making, is a far cry from what we expect of heritage protection in the present day,” Mr Drage said.
“It still seems that the primary function of the legislation is to give preference to Western Australia’s mining and economic interests over Aboriginal interests in protecting heritage and country.
“That final decision making remains in the hands of the minister, rather than the Aboriginal custodians of country, reinforces this view.”
Aboriginal Affairs Minister Tony Buti said the new rules followed extensive consultation and struck an appropriate balance.
"For the first time in our state's history, these laws will empower Aboriginal people to be truly involved in making decisions about activities that impact their cultural heritage,” he said.
"These new laws and guidelines provide a balanced approach to the protection and management of Aboriginal cultural heritage, whilst enabling economic activity, such as farming and mining, to continue.”
Under the new Act, land use activities will fall into four categories.
These will determine if the activity is exempt, does not need a formal approval, or requires a permit or a more comprehensive cultural heritage management plan.
The relevant Aboriginal people will need to be notified of any permit application while any management plan will need to be developed in consultation with the appropriate Aboriginal people for that country.
Aboriginal organisations can choose to be designated as a Local Aboriginal Cultural Heritage Service (LACHS), which will give them a greater say in these processes as well as provide a one-stop shop for proponents.
The new Act will take effect from July 1.
It replaces the 1972 Act, which included the controversial section 18 approvals process, where decisions rested with the minister.
That process led to the destruction by Rio Tinto of Juukan Gorge, a sacred site for the Puutu Kunti Kurrama and Pinikura Peoples in the Pilbara, who are represented by PKKP Aboriginal Corporation.
A survey of 50 organisations, covering explorers, miners, Aboriginal corporations and advisers, has found considerable unease about the transition to the new arrangements.
Most survey respondents said the shift of responsibility from government to LACHS’s was the most meaningful change.
Agreement Hub director Kellie Swanson-Hill, who commissioned the survey, said there was a general sense of uncertainty about the capacity of Aboriginal corporations to deliver.
“While no-one we talked to suggested that the old Act should not be replaced, almost everyone we spoke to, both Aboriginal corporations and industry, is taking a wait-and-see approach to the uncertainty ahead,” she said.
“Many Aboriginal corporations are already struggling with staff changes, shortages in heritage consultants, and not enough traditional owners to attend surveys, resulting in significant delays to land access.
“The smaller end of town – explorers, juniors, and mid-caps – are particularly apprehensive as the new Act will substantially increase the pressure on already stretched Aboriginal corporations.”
Ms Swanson-Hill said larger businesses were much less concerned about the new Act and viewed the changes as merely a formalising of procedures and processes.
The PKKP Aboriginal Corporation plans to continue developing its own heritage service.
“That is for our people and gives us the necessary power to protect and manage heritage rather than relying on a government minister or a mining proponent,” Mr Drage said.
“These guidelines do not change our position that co-management agreements with those wishing to operate on PKKP country are the most effective method to protect heritage while at the same time facilitating mining activity without compromising heritage protection,” he added.
The PKKP has been negotiating a co-management agreement with Rio Tinto for the past two years but it has not been finalised.
Mr Drage expressed concern about the fee structure for LACHS.
“It appears to be designed for limiting the financial liability for proponents when it comes to heritage surveys and consultations, rather than providing a mechanism for prescribed body corporates to build enterprise and capacity based on their unique knowledge and understanding of country and heritage,” he said.
Mr Drage also questioned the required due diligence assessments, which he said seemed to be more about absolving liability than forcing a project redesign that avoids impacts to heritage.
Dr Buti said work was continuing to prepare for the new Act.
“Work will continue over the coming months to bring in a new IT system for the lodgement of applications, conduct a series of education and awareness sessions for landowners and other stakeholders, and ensure the right governance is in place to support and empower Aboriginal people to realise the significant benefits of this new legislative framework," he said.
