WA Aboriginal Cultural Heritage Bill nowhere near the best in the country


Claims by the McGowan Government that the Aboriginal Cultural Heritage Bill is ‘the best in the nation’ is a blatant stretch of the truth with the Northern Territory legislation currently considered the most satisfactory to First Nations people in Australia.

Yamatji Noongar woman and Greens Senator for WA Dorinda Cox said evidence provided to the Senate Juukan Gorge inquiry, stated that the Northern Territory’s First Nations cultural heritage legislation is among the strongest in the country. 

“The Northern Territory is the only jurisdiction in Australia where First Nations people have a right to veto the destruction of cultural heritage,” she said.

“The Aboriginal Areas Protection Authority, which oversees the protection of sacred sites in the NT, includes a board of ten First Nations custodians and two government members. 

“The bill in WA only requires that the majority of First Nations people are members on the new Aboriginal Cultural Heritage Council. What we should have is 100 per cent First Nations representation on the Council - not a ‘majority’. 

“Victoria’s First Nations cultural heritage also offers strong protections. The National Native Title Council has said it considers the Victorian legislation to be best-practice because it comes closest of all the jurisdictions to embedding the United Nations Declaration on the Rights of Indigenous Peoples. Mark McGowan’s bill does not even come close to embodying the principle of Free, Prior and Informed Consent.

“Both Victoria and the Northern Territory have First Nations cultural heritage bodies with decision-making power. While the Aboriginal Cultural Heritage Bill 2021 sets up the Aboriginal Cultural Heritage Council, the Minister has the final say over the destruction of cultural heritage, not First Nations people.

“The legislation also provides no ability for First Nations people to appeal decisions made by the Minister through SAT review.  That means that one person - the Minister gets the final decision.

“Mark McGowan’s bill does not represent best practice cultural heritage laws. It doesn’t even come close to the best legislation in the country. 

Senator Cox questioned why the McGowan Government was ramming it through parliament and calling it an ‘urgent’ Bill.

“This is a sad day for First Nations people in Western Australia and from this day forward, no Aboriginal person can believe that this Government will protect cultural sites if a mining proposal looks too good to refuse,” she said.

“There is still a lot of mistrust and trauma after the Juukan caves were destroyed by a system that handed out permits to mining companies to destroy our cultural heritage.

“Contrary to what Minister Dawson and the Premier are claiming, this bill was not developed in consultation with First Nations people. There was no genuine and equal partnership. 

“The Government claims that this bill was co-designed in equal and genuine partnership with First Nations people, but First Nations people have not been provided with the latest version and did not have this opportunity before it is introduced into the State Parliament. 

“As part of ongoing information sharing on the Bill and the changes that have been made, I am greatly concerned that First Nations languages have not been used to communicate aspects of the Bill to communities, or caters for information sharing in a visual way which are consistent with traditional dialogues.”

Facts about the Northern Territory Bill:

  • The Aboriginal Areas Protection Authority (AAPA) is a statutory authority with a board of 10 First Nations custodians who are elected to their positions by the Administrator (equivalent of WA Governor) not the Minister. These people hold responsibility for the protection of sites and issue work certificates to proponents.
  • The NT Minister has attempted to override the decision of the Board on one occasion, in 1991 in respect of the Alice Springs dam. On that occasion the women custodians of the sites to be impacted by the Minister’s decision managed to override the Minister’s decision using powers under the federal Aboriginal and Torres Strait Islander Heritage Protection Act. The NTSSA has been effective in preventing harm to Aboriginal sacred sites since 1980.
  • The WA Bill falls way short of meeting these standards. In contrast, under the WA Bill, AHC Council members will be appointed by the Minister and the Minster will have the power to override their decisions.