Doubt cast over Aboriginal Heritage Act shake-up - ABC News (Australian Broadcasting Corporation)

Doubt cast over Aboriginal Heritage Act shake-up - ABC News (Australian Broadcasting Corporation):
Posted April 27, 2012
There have been accusations that the Western Australian Government's overhaul of the Aboriginal Heritage Act panders to the mining sector by making it easier for companies to disrupt sacred sites.

The WA Aboriginal Heritage Act Review – 

What we understand is happening

·       In May 2011 Dr John Avery was appointed to undertake a review of the WA Aboriginal Heritage Act 1972.  Dr Avery was engaged for a period of 12 months which will terminate in approximately 6 weeks.

·     The Minister for Indigenous Affairs, Peter Collier at the time indicated that Dr Avery would produce a discussion paper on any proposed legislative or administrative changes and that stakeholders and interested parties (including Aboriginal people, archaeologists and heritage professionals) would be provided with ample time to make submissions.

·        To date, no such discussion paper has been produced and no period of public review or comment has been provided.  To date, the work of Dr Avery has been conducted under a veil of secrecy, to the extent that the Heritage and Culture Division of the Department of Indigenous Affairs has been kept in the dark about administrative changes.

·        Despite the lack of consultation to date and the obscurantist responses to questions in parliament, we have managed to glean the following facts and believe this accurately characterises the current state of affairs.  From this we can surmise the intent of the review process.

·        On 10 February 2011 the Department of Indigenous Affairs (DIA) and DPC issued the “Cultural Heritage Due Diligence Guidelines”.  It is known, however, that these were in existence as early as August 2011, at which time relevant changes were also made to the DIA website without anyone being informed.

·         The steps set out in Part 2 of the guidelines are totally inadequate to achieve the rather ingenuously stated purpose of protecting and preserving Aboriginal cultural heritage and assisting land users in complying with their statutory obligations under the Heritage Act.

·        In a nut-shell, the purpose of these guidelines is, in the majority of cases, simply to assist land users to justify, to and for themselves, proceeding with their project or development proposal without the need for heritage avoidance or management strategies.

·        A secondary purpose of the guidelines is to assist in developing a valid section 62 defence under the Act, in the event that a site is damaged or destroyed by a proponent. 

·        The guidelines are also deeply disrespectful of the rights and interests of Aboriginal persons and groups and totally ignore the role of Aboriginal Representative Bodies in the management of heritage issues and the negotiation of heritage agreements on behalf of native title claimants and Traditional Owners.

·        The guidelines also state that the conduct of an Aboriginal heritage survey is only necessary where ground disturbance will disturb an Aboriginal site.  This presupposes that surveys are only required where an Aboriginal site is already known to be present.

·        In effect the guidelines do not recommend or explain any processes designed to establish whether there are any as yet unidentified Aboriginal heritage sites on the land.

·        Coupled with the issuing of the due diligence guidelines to industry, it is known that staff in the Heritage and Culture division of the DIA have been issued with an internal set of procedures, referred to as the “Registrar’s Guidelines”.

·        The DIA are being required to implement the policies outlined in the “Registrar’s Guidelines” which principally concern a strict application of the definitions of ‘Aboriginal site’ and ‘Aboriginal object’ under sections 5 and 6 of the Act.  Such an application will effectively result in greater that 90% of all Aboriginal heritage sites in this State being disqualified from legal protection under the Act.

·        It is understood that the Register of Aboriginal sites, which currently contains records of approximately 30,000 Aboriginal places and sites, will be reviewed in accordance with the Registrars Guidelines.  Based on the new narrower interpretation of section 5, up to 90% of sites will again no longer be qualified for legal protection under the Act and will be taken off the register.  At the current time, we are aware of at least one site (the Lake Yindarlgooda, Mammu Tjukurrpa – formerly registered site 30602) having already been de-registered.

·        The state government has a commitment to the Burra Charter for the protection of heritage places, though both the government and Dr Avery is clearly ignoring this commitment in their review.

·        Both sets of ‘guidelines’ discussed above appear in fact to be constructed to assist developers to avoid their statutory obligations by devaluing Aboriginal heritage.  It should be noted that the indigenous people of the Pilbara are already extremely socially disadvantaged despite living in the richest province in the state.  Should Dr Avery’s changes be allowed to go ahead unchallenged, he will, with the stroke of a pen, effectively devalue their heritage such that developers will be able to destroy what remains of their past without any legal impediment.

·        This will be the final dispossession of Aboriginal people and will represent yet another black mark on Australia’s already disgraceful human rights record.  The fact that the indigenous population is being dispossessed of its unique history and culture in a clandestine and surreptitious manner is the most heinous aspect of this State Government ‘initiative’.

·        I would urge every responsible citizen to demand that the review process be conducted in an open and transparent manner and that full disclosure of the nature, purpose, intent and content of the review be provided immediately so that this government’s shameful devaluing and bartering of our State’s heritage can be exposed to the full and comprehensive public consultation process that was promised last year by the Minister, Peter Collier.