Proposed changes to the WA Heritage Protection Legislation

With the recent boom in mining in Western Australia many archaeologists and cultural heritage advisors have found themselves travelling to the far corners of Australia to aid in identification and protection of Indigenous heritage. The impact of these major projects on Indigenous communities and heritage places has been widely discussed within both academic and public circles. The question of the protection of Indigenous heritage has long been the crux of these discussions and has led to many court proceedings and heated debates.

For the most part, the 1972 Aboriginal Heritage Act of WA has largely provided a set of guidelines for this protection which has allowed many previously unidentified sites to be recorded and afforded protection. It has also provided a basis for the prosecution of parties damaging sites that are both identified and unidentified.  Until now.

In the last 6 to 12 months there have been questions surrounding the possibility of amendments to the Aboriginal Heritage Act 1972; most recently these proposed changes have finally seen the light of day and have been published on the Government of Western Australia’s, Department of Indigenous Affairs (DIA) website. These proposed changes have been met with a mixture of apprehension and partial support by Indigenous communities and cultural heritage advisors alike. The seven proposed changes seek to adjust the Heritage Act to bring it up to date with effective administration tools, particularly in the case of mining and exploration, rapid State development and in regards to Native Title (DIA, 2012, 2).  Most of these proposed changes can be considered to be a positive step forward in improving the protective measures set in place in the 1972 Aboriginal Heritage Act.  Several of these proposals, however, could be considered alarming in terms of the protection of Indigenous sites.  The third proposal appears to be the most alarming of the seven, in that it seeks to dismiss the need for prosecution of any breaches of the act on unidentified sites purely because they are not on the register. There are concerns that this can possibly lead to the destruction of many sites not yet identified due to a lack of legal protection.  This, I believe, is purely an act to quicken the mining process, and remove the ‘red tape’ so to speak, in the destruction of the landscape, whether it contains heritage or not. This is particularly concerning for Indigenous groups currently locked in terse discussions over the use of ancestral lands by mining companies such as FMG, BHP and Rio Tinto throughout Western Australia. These changes potentially allow the mining companies to destroy unregistered sites without the fear of repercussions from the law.

As this is a governmental proposal for changes to the Act, submissions were requested with an approximate deadline of four to six weeks. Many companies and individuals responded to voice their concerns or support for these proposals. Cultural Resource Management Company Terra Rossa, headed by Scott Chisholm, for example, voiced support and concerns over the proposed changes in their submission. Chisholm discussed his professional concerns with the lack of consultation with a broader range of traditional owners, particularly within the high impact areas of the Pilbara and the Kimberley where most major projects are taking place within Western Australia. He also raised his concerns over the fact that large areas of WA have never been surveyed (Chisholm, 2012). This, as previously mentioned, may lead to either intentional or unintentional destruction of unidentified Indigenous heritage sites,especially as some Indigenous groups choose not to register sites on the state register.  Another submission to these proposed changes comes from Stephen Bennetts, who is a cultural heritage advisor. Bennetts also mentions Chisholm’s concerns and then goes further to discuss the impact of allowing the DIA to solely regulate the identification and management of Indigenous heritage sites. He points out multiple supported examples of the DIA’s reputation within the Indigenous community for not prosecuting the reported destruction of Indigenous sites (Bennett, 2012, 17). Bennett does, however, support the Department’s proposal to bring this function internally into the government, but proposes a similar scheme to the Northern Territory’s Aboriginal Areas Protection Authority (AAPA), in that a separate department to DIA is allocated to deal with heritage management.

These submissions, along with many others, point out the key flaws in the seven proposals but also wish to convey the general agreement for the need for amendments to the Act to better protect the state of Western Australia’s heritage. Many suggest the greater involvement of Indigenous traditional owners in this process and lament what should have been a perfect opportunity to amend this important act so that it keeps pace with the speed of development in the state’s northern mining boom. These submissions can be found at the following address:

http://www.dia.wa.gov.au/en/Heritage-and-Culture/Heritage-Act-Reform/Submissions/

The major questions of these proposed changes remain. Who truly benefits from these proposed changes and what will be the greater impact if they are passed and implemented by the Western Australian government?  Will other states experiencing a boom in development and mining also succumb to similar proposals? In the meantime, archaeologists, cultural heritage advisors, Indigenous communities and all other affected parties will continue to discuss with apprehension whether these changes will be passed and what the greater impact will be for the future management of cultural heritage management in Western Australia.

References

Bennetts, S. 2012 Submission to the proposed changes to the Aboriginal Heritage Act 1972. Retrieved 26th August 2012 from  http://www.dia.wa.gov.au/PageFiles/1842/STEPHEN%20BENNETTS-AHA.pdf

Chisholm, S. 2012 Submission to the proposed changes to the Aboriginal Heritage Act 1972. Retrieved 26th August 2012 from http://www.dia.wa.gov.au/PageFiles/1842/Terra%20Rosa%20response%20to%20Proposed%20Changes%205Jun2012.pdf

Department of Indigenous Affairs 2012 Submissions. Retrieved 26th August 2012 from http://www.dia.wa.gov.au/en/Heritage-and-Culture/Heritage-Act-Reform/Submissions/

Department of Indigenous Affairs 2012. Review of the Aboriginal Heritage Act 1973: Seven proposals to regulate and amend the Aboriginal Heritage Act 1972 for improved clarity, compliance, effectiveness, efficiency and certainty. Retrieved 26th August 2012 from

http://www.dia.wa.gov.au/PageFiles/1836/Discussion%20paper%20APRIL%202012v1.pdf

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2 responses to “Proposed changes to the WA Heritage Protection Legislation

  1. Brandon Crawford

    I was prompted to browse through the submissions on the DIA web site and found a great source of information on CHM values held by mining companies and Indigenous communities. Notably, the FMG submission was very interesting outlining resourcing problems and reliability of the DIA register. FMG provide an enlightening opinion on why Traditional Owners don’t register sites with DIA.
    The National Native Title Council raises a good point about aligning the WA Act with the Native Title Act for any amendments to be effective. They point out the right of appeal to decisions is not available to Traditional Owners, however it is available to proponents of development which may be inconsistent with the Racial Discrimination Act.

  2. liquidpersonality

    From what I understand departments like the DIA are understaffed and work in a high pressure position with powerful lobby groups all around it. At times I am sure that staffing shortages and tight deadlines mean that mistakes are made by all parties in this sector. At times I am sure that the multi-million dollar debt that rides on the shoulders of some companies also leads to signifiacnt pressure on small government departments like the DIA. That being said the establishment of an onlilne database of previous reports in the area by the DIA would lead to significantly better archaeology in the region. Perhaps the establishment of a department similar to that of the AAPA in the NT is a good idea, as long as it is well funded and given effective control.