Western Australia Labor Premier Roger Cook鈥檚 announcement on August 8 that he was repealing WA鈥檚 new Aboriginal Cultural Heritage laws comes after sustained opposition from vested mining, pastoral and farming interests, and as Labor urges a Yes vote in the Voice to Parliament referendum.
The laws, in effect for just five weeks, were enacted after Rio Tinto legally destroyed the Juukan Gorge caves in 2020, after being warned by the Puutu Kunti Kurrama and Pinikura people (PKKP) that they were a significant cultural site.
The 46,000-year-old rock shelters were in the Hammersley Ranges,聽roughly 60 kilometres from the town of Tom Price.
The now abandoned cultural heritage law would have required developers to submit a management plan to the Aboriginal Cultural Heritage Council prior to disturbing, or altering, a site if it was believed to hold cultural significance.
The Act stated it aimed to value and protect Aboriginal cultural heritage and manage activities that may harm that heritage and that it recognised 鈥渢he special interest Aboriginal people have in protecting, conserving, preserving and managing Aboriginal cultural heritage鈥.
Cook claimed the back flip shows his government 鈥渓istens to people鈥.
However, PKKP chairperson Terry Drage said that that 鈥渓istening鈥 did not include Traditional Owners, who were not consulted about plans to scrap the new laws.
He said the community was 鈥渄evastated and angered鈥 by the news, telling the on August 5 that while the new act 鈥渋s not perfect, it is better than what it replaced鈥.
鈥淚f the state government had listened to community feedback during the consultation phase, we would not be in this mess.
鈥淔ix the guidelines, which are the biggest problem, not scrap the act.鈥
The decision to repeal the law means that the 1972 law, in place when Juukan Gorge was destroyed, has , with some amendments. That 50-year old law will now allow Native Title holders to appeal decisions by the Aboriginal Affairs Minister which permit the destruction of culturally significant sites under a new Section 18.
As this legal means of appeal was absent from the cultural heritage law, some First Nations groups, including the Kimberley Land Council (KLC), opposed the law because it still left final decision-making power in the hands of a minister and not Aboriginal organisations.
The KLC said on August 9 that while it , the proposed amendments to the 1972 Act 鈥渄o not go far enough鈥.
鈥淲hile the proposed amendments to the 1972 Act may appear to be positive for Traditional Owners鈥 rights and cultural heritage protection, they do not go far enough,鈥 .
鈥淎boriginal people, not the minister, should be the final decision-makers on matters concerning our cultural heritage.
鈥淭hroughout the debacle of the past week the KLC was not once asked for our genuine feedback on the proposed amendments and whether they are suitable.
鈥淚t saddens me that Aboriginal people have again been removed from the decision-making room, about a subject matter and law that so inherently affects us.鈥
The KLC claimed it had only received a copy of the drafts less than 24 hours before the bills were presented to parliament.
Garstone said a persistent failure in the 1972 law was the lack of prosecution of breaches where damage or destruction of cultural heritage had already happened.
鈥淚f the government is not willing to prosecute and appropriately penalise those who damage cultural heritage, the law is meaningless,鈥 he said.
鈥淭he Premier must provide clarity about his comments that those who 鈥榰nknowingly disrupt鈥 cultural heritage will not be prosecuted.
鈥淲e have grave concerns that this misleading and confusing statement may be used as a defence by developers when their actions damage or destroy cultural heritage, and as an excuse for the Government to continue to fail to protect the interests of Aboriginal people by not prosecuting breaches of the law.鈥
Garstone said Australia鈥檚 approach to cultural heritage protection must also be pursued at the national level by the federal government.
鈥淚t鈥檚 been one and a half years since the release of the Australian Parliament鈥檚 final report into the destruction of Juukan Gorge, which highlighted the need for a national framework, and still little has changed.
鈥淚t is still unlawful to damage Aboriginal cultural heritage,鈥 Garstone stressed.
The legal changes coincide with the debate over the Voice to Parliament referendum, to which Labor and most mining corporations are championing a Yes vote. Many of the latter are on record stating they would if requested to by bodies set up by the Voice.