The WA Aboriginal Heritage Act: What’s Wrong with this Picture?

1. The WA Aboriginal Heritage Act: What’s Wrong with this Picture? by Carolyn Tan

2. Historical Overview • WA Aboriginal Heritage Act was quite ground-breaking when introduced in 1972 in extending protection to sacred and ritual sites. • Prior to that most legislative protection around Australia was for archaeological objects and sites where there are such objects/remains. • Made it an offence to damage an Aboriginal site even if unregistered/unlisted.

3. Historical Overview cont’d • Much of the thinking was still archaeological. Protection was initially the responsibility of the Trustees of the WA Museum, though they were subject to directions by the Minister. • Nookanbah disputes in 1979. Trustees rejected an application to drill at a sacred area and wanted it to be a protected area. Minister directed Trustees to consent. The use of this power was upheld by the Supreme Court.

4. Historical Overview cont’d • This and a dispute over exploration by CRA at Argyle in 1980 led to amendments to the AHA to give the Minister the power to consent to activities under s18 which could disturb a site. Definition of an Aboriginal site also narrowed. • In 1984, the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act (ATSIHPA) was passed. Reasons given included the inadequacies of State legislation like the AHA in the Noonkanbah situation.

5. Historical Overview cont’d • In the late 1980s and early 1990s there were struggles to protect sites that would be impacted by the Swan Brewery development in Perth and the Crocodile Park in Broome. • In 1992, the Aboriginal Heritage (Marandoo) Act was passed to exclude the operation of the AHA for the locations of the Marandoo iron ore project in the Karajini area.

6. Historical Overview cont’d • There were various amendment bills drafted in the early 1990s but these did not progress. 1995 amendments removed the Trustees from the AHA and expanded the types of interest holders who could apply for a s18 application. • Clive Senior carried out a review in 1995. Elizabeth Evatt also carried out a review of the Commonwealth ATSIHPA legislation at around this time.

7. Historical Overview cont’d • Evatt made recommendations for ATSIHPA, some of which could be adopted for AHA as well. Despite these reviews, their recommendations have not been put into place. • There is currently a review of the AHA being carried out and also administrative changes taking place. No announcement of any major changes to overhaul the 40 year old Act.

8. Some conceptual problems: What of the past do “we” want to protect? • The WA Act suffers from many of the same conceptual problems found in most other Australian Indigenous heritage protection statutes. • There are particular problems in a model that assumes heritage is what “we” as a State or WA community want to protect. • The model is transported from statutes designed for relic and historical monument protection.

9. Scientific assessment and government determination • This assumes scientific or expert assessment and policy decisions by a government body. May be fine for judging the relative significance of an archaeological object or site or for assessing architectural or historical importance of buildings and what is worth keeping in the public interest, but not for assessing what is culturally and spiritually important for a specific community of people.

10. Who are we protecting it for? • Protected for the wider community. Part of “our” collection of heritage that “we” want to preserve. Preservation as a public interest. Government bodies assess and decide for the wider community. See Tickner v Bropho (1993) 114 ALR 409, 449. • So questions can be raised about who gets notice of intent to deal with sites and procedural fairness? See WA v Bropho (1991) 5 WAR 75.

11. Procedural fairness for proponents • Contrast with the concerns of natural justice for proponents to know confidential or restricted material which is part of the case against them. See Crocodile farm cases (eg Full Court in Minister for Aboriginal Affairs v WA(1996) 149 ALR 78) where procedural fairness for the State outweighed gender restrictions. Also Hindmarsh Island cases (egChapman v Luminis(No 2) [2000] FCA 1010 and following).

12. No rights of appeal for traditional custodians • Under the WA AHA rights of appeal are given to the owners of the land against a decision not to allow them to disturb a site but no equivalent rights are given to Aboriginal owners because the Minister has “ultimate control” to preserve the “general interest of the community” : see Traditional Owners- Nyiyaparli People and Minister for Indigenous Affairs [2009] WASAT 71.

13. Notice of appeals under AHA • AHA does not provide that Aboriginal custodians need to be given notice of appeals by the owner of the land against the Minister’s decision. The Minister and owner reached agreement in a SAT appeal mediation to remove some protective conditions on a consent without Aboriginal custodians knowing that this was occurring. YMAC asked SAT for notice of any appeals so our clients can intervene. The State would only agree to a protocol where there would be a discussion between them and SAT about identifying Aboriginal groups consulted.

14. Need enforceable rights • There is obviously a need for legislation to recognise that it is for the benefit of Aboriginal Peoples, that it is their heritage and they need to be provided with enforceable rights under the AHA. Needs to be a recognition of right to control information and maintain cultural restrictions.

15. Discrete Sites or Objects • Problem of a “silo” approach to the collection. Objects and sites are cut off from the stories and the cultural connections. • Sites analysed separate from complexes, songlines etc. • Problem of protecting only discrete sites and objects with open slather over the rest. Western preoccupations with boundaries and fear of unbounded and uncontrolled sacredness.

16. Physical disturbance of sites vs desecration or impacting values • Related questions arise as to whether the AHA is focussed on physical damage or disturbance to physical sites or objects or whether damage or disturbance can extend to diminution of heritage values esp non-physical effects like noise, being viewed by inappropriate people. There may also not be protection to enable access to perform any rituals required to ensure the efficacy of a site.

17. Assessment of significance • Problems of an objective assessment by external assessors. Eg: Western assumptions about what makes evidence credible. • Distrust of: • oral traditions uncorroborated by written support; • restricted knowledge not generally known; • refusal to disclose (or late disclosure of) details of restricted information; • mythical or metaphysical beliefs.

18. Problems of external assessment cont’d • Dangers of reverting to tests of rationality and orthodoxy in assessing significance and credibility. • Need to have a means of assessment by Aboriginal people using Aboriginal value systems for protection and interpretation and use of their own heritage.