'Speaking with one voice' – WA's changes to Aboriginal Heritage law rejected at bush meetings

Be careful what you pray for. By proposing to strip away protection for Aboriginal people's heritage across the board, and throughout the State, the Barnett Government appears to have unwittingly conjured up a strong, united and angry Aboriginal coalition which is now mobilising against the AHA amendments.

Wandjina rock paintings in ochre (Wunnumurra Gorge, Mt Elizabeth Station, Kimberley Region, Western Australia)

A guest post from anthropologist Dr Stephen Bennetts
Crikey Blogs 30 September 2014

Aboriginal leaders in the Kimberley, Pilbara and Perth have rejected WA Government plans to amend the state's Aboriginal Heritage Act to further streamline provisions under section 18 of the AHA which allow for the destruction of Aboriginal sites by developers.

At a bush meeting last Friday at Yule River, south of Port Hedland, representatives of all major Pilbara Aboriginal language groups voted to reject the AHA amendments, calling on WA's Legislative Assembly to form a Select Committee to develop a new framework for reform of the AHA with meaningful participation by Aboriginal people. A Pilbara Aboriginal delegation will also be sent to Perth for talks with Premier Colin Barnett — and also — if necessary, to Canberra, to discuss their concerns with the (de facto) Federal Minister for Indigenous Affairs, Tony Abbott.

The previous day, 400 members of the Kimberley Land Council also voted unanimously to reject the AHA amendments at an AGM held in Jarlmadangah 200km east of Broome, while on Tuesday 16 September, members of Perth's Noongar community also organised a rally outside WA Parliament denouncing the Government proposals. A WA Government call for submissions on the proposed AHA amendments drew a record 151 responses in August, almost all of them critical of the WA Government proposals.

Kimberley's Kimberley Land Council (KLC), Kimberley Language Resource Centre (KLRC), Kimbereley Aboriginal Law and Culture Centre (KALACC) memberships unanimously vote to reject and protest the Western Australian Government's miner and developer friendly proposals to the Aboriginal Heritage Act which sees decisions invested in one person and with no right of appeal for First Peoples!

(Source; The Stringer Photo, Cornell Ozies)

Critics (including the Law Society of WA) have highlighted numerous shortcomings in the proposed amendments. Whereas previously, the Aboriginal Cultural Materials Committee (comprised of senior Aboriginal people and anthropological and archaeological experts) was responsible for determining the status of Aboriginal sites under the AHA, the current amendments will not only abolish the anthropologist position on the ACMC, but also invest a single Government-appointed CEO — who may not necessarily have experience or expertise in heritage matters — with draconian powers over the fate of WA's Aboriginal cultural heritage.

The amendments, it is claimed, are also potentially inconsistent with both the Commonwealth Native Title and Racial Discrimination Acts; under s 18 of the Act, a developer proposing to destroy an Aboriginal site has a right of appeal to the Minister, whereas the Aboriginal custodian of the site does not.

The specific regulations under which the AHA would operate once the amendments are promulgated by Parliament are still a closely guarded Western Australian State secret. The amendments themselves appear to have been framed according to a wish list drawn up by mining interests, while no meaningful form of consultation over the AHA amendments appears to have taken place with Aboriginal people or organisations.

For Dr Carolyn Tan, in-house legal counsel at Yamatji Marlpa Aboriginal Corporation and an authority on indigenous cultural heritage protection regimes in various countries, the current WA system is:

… in some ways the worst in mainland Australia. (although a bill has recently been introduced into Tasmanian Parliament's to revamp the State's current outdated heritage legislation) Victoria and Queensland upgraded their Aboriginal cultural heritage legislation in 2004 and 2006 respectively, but only Western Australia seems to be going backwards in terms of recognising the rights of Aboriginal people in relation to their own heritage.

It would be a mistake, however, to assume that the current WA Liberal Government record on Aboriginal heritage protection is any worse than that of WA's previous Carpenter Labor Government; in 2006, the WA Labor Government lifted heritage protected status over a protected rock art area in the Pilbara's Abydos/Woodstock region, following lobbying by FMG consultants Julian Grill and Brian Burke, to allow FMG to construct a railway line through the area, in circumstances later investigated — sensationally — by WA's Corruption and Crime Commission.

The Mysterious Bradshaw images in the East Kimberley, Western Australia

In 2006 and 2007, the Carpenter Labor Government also gave approval for approximately 940 (the ACMC approved the Pluto A s18 proposal (though not the sensitive southern portion), but unanimously rejected the Pluto B proposal) Aboriginal petroglyphs to be removed from Woodside's Burrup Peninsula Pluto leases, to make way for the company's Pluto LNG plant, against the explicit wishes of the local Aboriginal custodians, and after the WA Minister for Indigenous Affairs, Michelle Roberts, had overruled the recommendations of her own expert advisory committee, the Aboriginal Cultural Materials Committee (though not the sensitive southern portion), but unanimously rejected the Pluto B proposal).

A great deal of heritage work in WA, especially under s 18 of the AHA, is currently carried out by heritage professionals who are directly engaged by company proponents, and this has led at times to doubts about their professional independence.^[1] One recent case suggests that the independence of these expert reports is easily subverted under the current system in WA.

In a 2011 letter to the DIA Registrar, an archaeological consultant who had been engaged by a well-known mining company stated that the company had refused to pay her invoice for professional services until she had removed certain passages from her (supposedly) independent heritage report. The State Government's conspicuous lack of zeal in pursuing the mining company concerned over this issue is obvious from a series of recent parliamentary questions on the issue.

Under the Barnett Government, FMG successfully lobbied in 2011 for Aboriginal Affairs Minister Peter Collier to lift conditions obliging FMG to avoid disturbing Yindjibarndi grave sites in the region of FMG's Solomon Hub project. The fact that the Minister had recently publicly stated his friendship on community radio with FMG Director Andrew Forrest led to widespread media commentary on the Minister's perceived lack of independence. The State Government's prosecution of alleged serious breaches of the AHA by this company since these events has been less than zealous.You can see the Minister's response here.

Despite a succession of WA Aboriginal heritage clashes dating back to the celebrated 1980 Noonkanbah protests, Aboriginal opposition to ongoing heritage destruction in WA has until now been severely limited by its highly localised nature, with Aboriginal people often hesitant to speak out publicly about ‘other people's country' due to constraints under Aboriginal Law. But by proposing to strip away protection for Aboriginal people's heritage across the board, and throughout the State, the Barnett Government appears to have unwittingly conjured up a strong, united and angry Aboriginal coalition which is now mobilising against the AHA amendments.

Despite the undoubted benefits which have flowed to Aboriginal people since the 1993 Native Title Act, many Aboriginal claimants have been exhausted by an endless succession of meetings about native title, mining and regional agreements which have left little room at times for ‘big picture' discussions about the overall protection of Aboriginal cultural heritage.

Older Aboriginal people at the Yule River meeting on Friday like Nyamal elder Doris Eaton contrasted the bickering and arguments of the native title era with an earlier period, when Pilbara Aborigines used to ‘speak with one voice'.

During the 1946 Pilbara Strike, Aboriginal people held secret meetings in remote bush locations to plan an ambitious three year walk off by Aboriginal pastoral workers living on Pilbara cattle stations in conditions of virtual slavery. During the land rights era from the late 1970s, Yule River became the focal point for big bush meetings attended by up to 2,000 Aboriginal people from all over the Pilbara.

Although such meetings had long since fallen into abeyance, the revival and re-evocation of this powerful Pilbara tradition at the Yule River bush meeting last Friday perhaps highlights the degree to which, through its extreme heritage agenda, the Barnett Government has now created a united Aboriginal movement which is again reconnecting with the land rights ideology and traditions of an earlier time.

[1] See Dr Phillip Moore's classic paper on WA's ‘heritage industry' in Moore, P ‘Anthropological practice and Aboriginal heritage (a case study from WA)' in Toussaint, S. & Taylor, J (1999) (eds) Applied anthropology in Australasia, UWA Nedlands, 229-254. Available at: http://www.dampierrockart.net/Studies.html).