“Stolen Heritage Generation’’

NEW heritage laws in Western Australia will lead to a “Stolen Heritage Generation’’ and deliver the fate of thousands of indigenous sites into the hands of a single bureaucrat.

These are among a tide of criticisms aimed at proposed changes to the WA Aboriginal Heritage Act released for comment.

If passed, the changes would streamline approval processes for miners, but also increase penalties for destruction of sites and extend the period during which offenders can be prosecuted from one to five years.

Aboriginal Affairs Minister Peter Collier said the recent pace of economic development in the mining and construction sectors had highlighted inefficiencies in the laws. The department identified a backlog of 6000 unassessed heritage sites, which resource companies argue is causing costly delays in getting approval to ­develop mines.

Mining lobby group AMEC welcomed the changes, saying they would increase clarity and certainty for all stakeholders. “AMEC is keen to see early passage of the amendments through parliament and will continue to work with government,” said chief executive Simon Bennison. But native title representative groups and anthropologists say the proposed changes to Australia’s first set of laws covering Aboriginal sacred sites will concentrate power in the hands of a single ­bureaucrat, the chief executive of the Department of Aboriginal ­Affairs.

The role of the Aboriginal Cultural Material Committee, which assesses applications to disturb or destroy sites, will be downgraded and the chief executive will ­assume powers to issue and ­expedite permits for development where that activity will not, in his opinion, disturb registered sites.

Mr Collier said the system “will mean decision-making will occur on an ongoing basis without relying on the system of monthly (ACMC) meetings”. The new system will also allow developers to transfer a permit to disturb a site to a new purchaser, replacing ­arrangements requiring a review if site ownership changes hands.

Simon Hawkins, from the Pilbara-based Yamatji Marlpa Aboriginal Corporation, was alarmed that decision-making powers would be concentrated in a single entity. “One person, not necessarily with any relevant expertise or experience in cultural heritage management, will have the discretion to protect or destroy Aboriginal heritage sites and objects.”

He said Aboriginal people continued to be denied any power to appeal a decision affecting their heritage, with no change to rules that permit only development proponents to appeal to the State ­Administrative Tribunal. “The WA government had wasted a unique opportunity to address the deep inequities in the Aboriginal heritage protection regime.”

Aboriginal heritage sites include the Burrup Peninsula, the world’s largest rock art site, ancient ochre pits and shell middens.

Former WA Museum curator and archaeologist Kate Morse said the loss of prehistoric objects and sites of significance was at stake. “It’ll become the Stolen Heritage Generation if we don’t look out. This is part of our heritage that is being lost and nobody will ever know (the sites) where Aboriginal people lived,” Dr Morse said.

Fiona Hook, president of the Australian Archaeological Association, said she would be seeking input from international heritage bodies. “There is now no way for Aboriginal people to be involved in the process and it removes expertise from the ACMC. Yet it should be going in the other direction.”

She said new definitions requiring a higher threshold of significance for a site to be registered would see smaller sites destroyed.

The Western Australian Minister for Aboriginal Affairs, Hon Peter Collier, released the AboriginalHeritage Amendment Bill 2014 (WA) (the Bill).  The Bill proposes a number of amendments to the currentAboriginal Heritage Act 1972 (WA) (Act) and the Department of Aboriginal Affairs (DAA) is accepting written submissions on the changes until 5pm on 6 August 2014.    

The Bill responds to industry concern about delays in the administration of the current Act. The basic idea of the amendments is to lessen the timeframes associated with that administration and increase penalties for offences under the Act.

The Bill provides for:

1. Providing that the CEO will evaluate, on behalf of the community, the significance or otherwise ofAboriginal sites and places;
2. Engagement with the Aboriginal cultural Committee only if the CEO requests it;
3. The making of declarations about the non-existence of sites on land;
4. The granting of permits for the purposes of section 18 to deal with land affected by sites of significance; and
5. The creation of registers to record sites and places.

1. Section 18 permits

Similar to the current regime, a section 18 permit is required to use the land in circumstances which would normally breach the Act.  The CEO’s evaluation of sites and places is likely to cause significant concern in the Aboriginal community and may create delays in the introduction of these amendments.

Currently, only the land owner can lodge a section 18 application; conversely, the Bill drafting allows anyone¹  to make the application.

The Bill also provides for the permits to be transferred between different land users, where their activities are within the scope of the permit.

2. Streamlining

Under the Bill all section 18 applications will be considered by the Chief Executive Officer (CEO) of the DAA.  The Committee no longer has an “as of right” involvement in the assessment of applications.

The Bill provides that where the CEO considers that:

• there are no Aboriginal Sites on the land, it may issue a declaration  (new process);
• there are Aboriginal Sites on the land, but such sites will not be adversely affected by the proposed activities, it may issue permit (new process); or
• there are Aboriginal Sites on the land and such sites may be adversely affected by the proposed activities, the application must be referred to the Aboriginal Cultural Material Committee to assess and the Minister to grant or refuse (maintains status quo).

A new register of declarations and permits is proposed by the Bill to assist with enforcing breaches.

3. Heritage surveys and land access

The Bill does not require heritage surveys and consultations with traditional owners to occur.  Although, it will be easier to obtain a CEO declaration that there are no sites if such steps have been undertaken by the proponent.

Obtaining a section 18 permit or a CEO declaration does not give a proponent permission to access the land.  Access will need to be obtained through other processes such as the Native Title Act 1993 (Cth).

4. Aboriginal Sites evaluation and registration

The Bill looks to introduce new regulations which include a consistent assessment criteria and process for evaluating a site or object.  If an Aboriginal Site or Object is identified, the Bill requires more detailed information to be registered about the nature and location of a site.

The CEO will be the main entity assessing the sites, objects and areas.

To encourage sites to be registered and trust between the DAA and traditional owners, the Bill provides that the defendant in any prosecution for damage of a site will have to prove that the area is not a site on the balance of probabilities.

5. Stronger compliance regime

If you damage an Aboriginal Site or Object, the Bill provides for:

• infringement notices to be issued for minor offences;
• the Court to order remediation where acceptable to the traditional owners;
• significantly higher penalties (aligned to the Queensland and Victoria Aboriginal heritage legislation, for example: $500,000 for a body corporate first offence, up from $50,000); and
• a limitation period of five years for bringing prosecutions (currently one year).

For a copy of the draft Bill and details on lodging a submission click here.