Amendments to WA’s Aboriginal Heritage Act: a mining ‘industry-friendly’ high jacking

Everywhere, people attach powerful emotions to the deaths of others and feel the need to dispose of the bodily remains of the dead in a suitable manner. In Australia, there is ancient evidence for such rites of disposal. Human remains recovered from Lake Mungo dated to 30,000 years or possibly much older were buried with red ochre and carefully positioned for burial. Similar mortuary practices have been recorded ethnographically and many Aboriginal people continue aspects of these traditions in their care for the dead.

Avery, John – ‘Rights to Mortuary Rites’ [2002] IndigLawB 6; (2002) 5(14) Indigenous Law Bulletin 15

In May 2011, the Western Australian Indigenous Affairs Minister Peter Collier announced the appointment of Dr John Avery to assist in the reform of Aboriginal cultural heritage processes in Western Australia, which would include a review of the Aboriginal Heritage Act 1972. Read the Minister’s press statement.

Dr John Avery is the former acting director of the Northern Territory’s Aboriginal Areas Protection Authority (AAPA) and the influence of the AAPA heritage protection model is very obvious in this discussion paper. This model, with the associated Aboriginal Sacred Sites Act (NT) (together with heritage protection on Aboriginal freehold land afforded under the Northern Territory Aboriginal Land Rights Act 1976 (Cth)), is widely recognized as the high water mark for Aboriginal heritage protection in Australia.

On 1 May 2012, the Minister released a discussion paper arising from the review process. The Minister’s press release states that stakeholders have five weeks to comment on the discussion paper. The closing date for submissions was Tuesday 5 June 2012 at 5.00 pm, but the Minister has allowed an extension for late submissions until 26^th June 2012 at 5pm.

When considering the implications of mining on Aboriginal communities it needs to be born in mind that approximately 80 precent of all mining activities in Australia occur on Aboriginal land where:

Many ancient Aboriginal heritage sites, which can include thousands of years old rock art, relics and skeletal remains have been obliterated owing to the weaknesses of the Aboriginal Heritage Act 1972 (WA). The Western Australian government wants to water down this act even further which would benefit mining companies and development and see so much more destruction of our precious Indigenous culture.

PETITION: Protect Indigenous Heritage sites in Western Australia

Native title lawyer David Ritter in his 2003 critique of the Western Australian Aboriginal Heritage Act 1972 ‘Trashing Heritage: Dilemmas of Rights and Power in the Operation of Western Australia’s Heritage Legislation’ argued that:

… it is a myth, expressed by the objects of the Aboriginal Heritage Act, that the main purpose of the legislation is to protect Aboriginal heritage. It may be more accurate to describe the AHA as an act to regularize the obliteration of Aboriginal heritage … The result is that the colonizing power can continue to do with Aboriginal places and materials exactly as it wants.

In a submission to Dr Avery’s review of Western Australia’s Aboriginal Heritage Act, Stephen Bennettes, Chief Heritage Officer, Heritage & Culture Branch Government of the Western Australia Department of Indigenous Affairs commented that:

Although Dr Avery was in an excellent position to credibly reform the State’s dysfunctional Aboriginal heritage regime using the Northern Territory model, it is very clear from the discussion paper that he has had little room to maneuver in making recommendations which would bring about the necessary improvements. This is apparent not only in the pusillanimity of the discussion paper’s proposals for reform, but also in the way the entire review process has been carefully framed and circumscribed by the State Government, with public discussion occurring at the end of Dr Avery’s appointment, once the State Government had already determined what the final industry-friendly agenda was to be. As noted by others who have made submissions, the consultation process has been woefully inadequate, especially with WA Native Title Representative Bodies and Aboriginal people generally. [My emphasis].

In 1995, Justice Elizabeth Evatt was commissioned by the Commonwealth Government to conduct a review of the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The review was aimed at examining the limitations of Indigenous heritage protection legislation, more generally in light of the Hindmarsh Island Bridge affair and other controversial developments considered under the Act. Evatt’s report provided a detailed review of the federal, state and territory heritage protection regimes following consultation with various stakeholders including Indigenous people, communities and organisations. Evatt’s recommendations for the Act’s reform ‘proceeded on the basis that the Commonwealth provide a remedy of last resort as a national responsibility’. Amongst other key recommendations, the review called for presumptive (blanket) protection of significant Indigenous cultural heritage and the setting of uniform standards of accreditation for states and territories that provided for substantial improvement to existing laws. The report also called for greater recognition and respect of Indigenous customary law, particularly in relation to the disclosure of restricted information such as ‘secret women’s business’. It proposed that legislation take into account the cultural and customary concerns of Indigenous peoples, recommending that these accounts not be bound by technicalities, legal forms or rules of evidence. Justice Evatt’s report was presented to the Howard government shortly after it came to power in 1996.

Unfortunately, the Western Australian review takes account of neither Dr Avery’s Northern Territory model or of Justice Elizabeth Evatt’s landmark 1996 recommendations for State and Commonwealth Aboriginal Heritage law reform.

The WA Greens are also critical of Dr Avery’s review. Western Australian Greens Member for the Mining and Pastoral Region Robin Chapple MLC has criticized the way in which the State Government is handling the review of the Aboriginal Heritage Act. Noting that:

Dr John Avery’s review of the Aboriginal Heritage Act 1972, is critically short of detail, making it almost impossible to comment on many aspects of the report.

“For example, it is: ‘proposed to prescribe additional criteria that the ACMC may consider when assessing whether Aboriginal places should be preserved for their importance and significance to the cultural heritage of the State’ but no information about the nature of the criteria is provided…

Further: At present,the Act places the onus on persons accused of breaching the Act to prove that places and objects relating to the proceedings are not Aboriginal sites or objects to which the Act applies, whether they are registered or not. To enhance the authority of the Register, it is proposed to modify this provision so that it only applies to places and objects on the Register.”

This removes any protection of sites not on the register, encouraging people not to survey or report sites and does not address issues of old/new registers or the time it may take to get sites listed on a register.

What is more concerning about Western Australia’s industry-friendly review of the Aboriginal Heritage Act 1972 is that it comes at a time when the Yindjibarndi people are fighting Fortescue Metals Group (“FMG”) to protect sacred sites, some which include, Aboriginal remains.

On 30 June 2011, about a month after he appointed Dr Avery to conduct a review of Western Australia’s Aboriginal Heritage Act, Peter Collier gave FMG consent to commence mining in Yindjibarndi country at the Solomon Project, but attached several fundamental conditions, recommended to him by the Aboriginal Cultural Materials Committee (ACMC), which gave some assurance that Yindjibarndi heritage would be properly recorded, registered with the Department of Indigenous Affairs (“DIA”) and protected.

For as long as these conditions remained FMG could not commence mining activity on the land without first carrying out such cultural heritage surveys, the very cultural survey’s that the WA Greens argue will be disregarded by miners under Western Australia’s proposed reforms to its Aboriginal Heritage Act. FMG, not wanting its mining activities curtailed by Minister Collier’s conditions, applied to Western Australia’s State Administrative Tribunal (SAT) seeking an order to have some conditions amended and others deleted.

On 13 December 2011, Minister Collier complied with FMG’s request to delete three crucial conditions that obliged FMG to:

• “Avoid all sites that contain Aboriginal human remains”,

• “clarify the status of heritage places on the Land and identify all heritage values associated with places on the Land”, and

• “provide the Registrar with information on the location and archaeological and ethnographic assessments of all rockshelters and caves located on the Land.”

One might ask how the deletion of these crucial provisions by Minister Collier pays even the minutest ‘lip-service’ to Justice Evatt’s proposals that legislation take into account the cultural and customary concerns of Indigenous peoples, recommending that these accounts not be bound by technicalities, legal forms or rules of evidence.

Concerns have also been raised by Aboriginal groups over Woodside’s proposed James Price Point LNG development. According to Woodside’s website:

On 30 June 2011, a Native Title Agreement was executed to enable the establishment of the Browse LNG Precinct near James Price Point, 60 km north of Broome in Western Australia.

The Agreement, between Woodside, the State of Western Australia and the Goolarabooloo Jabirr Jabirr native title claim group, secures the land required for the State Government’s LNG Precinct and provides a significant package of benefits and initiatives for Indigenous people in the Kimberley, subject to a positive final investment decision.

However, some Goolarabooloo Traditional Owners question the Environmental Protection Authority’s report on James Price Point after learning that only one of the five members of the board were free from conflict of interest.

Philip Roe one of the Goolarabooloo Traditional Owners reportedly said that:

Woodside and the joint venture partners are ignoring the wishes of the Goolarabooloo and the people of Broome, by forcing an unwanted gas hub upon us.

Every Australian should concern themselves with the alarmingly high rates of identified conflicts of interest within the mining industry. What the mining industry is digging up and shipping overseas is not the private property of a few wealthy individuals; it is either the property of the Aboriginal communities on whose land the minerals are situated, or these minerals are the common property of the Australian people. Either way, they belong to a people, not a few wealthy individuals.

Conflict of interest, depending on the nature of the conflict, could amount to corruption. Corruption becomes a major concern when large sums of money can be made with minimal effort. There is huge investment but little value adds for Australia from the mining industry. The miners are not adding to Australia’s industrial and therefore long-term investment base. They are digging up and selling something that belongs to someone else for personal gain.

But for a racist notion put forward by a dead white male Emer de Vattel, that, “When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation,” all the minerals currently being dug up and shipped overseas for someone else’s benefit would have remained the property of their rightful owners, the Aboriginal peoples of Australia.

The Aboriginal people could then have decided in their own way and in accordance with their own laws if it was culturally and morally defensible to disturb their sacred ground and their dead for the benefit of the global economy, or worse, for the benefit of a few at the expense of the majority.

Penillion of the Iron Ore Eaters

For the Yindjibarndi People and all other peoples who are or have been or will be driven from their land by the rapacious miners of the Pilbara.

It’s an eating
And a shitting
Analogy?
A synergy

Of compulsion
And revulsion?
Feeding nation/
nation feeding.

Those billionaires
Work the figures:
Divide, conquer/
Coffins, coffers.

Red ore engorged,
Flowers blooded,
Wild contusion
Styled transfusion;

The vast ‘donor’
Left hollow or
Gasping for breath:
Smelters are stealth

Out where the sky
Is primary.
The bands, the seams,
Layers of dreams:

Laws of plosion
Exploration,
Peg-claim: purvey
voyeurs’ surveys

A deletion,
Or extinction
A tenement
As testament?

Miners’ terror:
Stygofauna.
But not the ‘law’
They can pay for.

They eat bodies.
They shit corpses.
Acacias.
Budgerigars.

John Kinsella – First published in The Sydney Morning Herald on February 18, 2012

Post script: Change.org is hosting a petition calling upon the Western Australia Heritage Minister to protect the art and heritage of the Indigenous people of his state. Sign the petition by clicking on the linked petition title:
The Hon tony Burke: Protect Indigenous Heritage sites in Western Australia.