BY HANNAH MCGLADE

This post is one in a two-part special series looking at the report of the parliamentary inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia. See the second post by Lucas Lixinski here. These posts also appear on Indigenous Constitutional Law.

The Joint Standing Committee on Northern Australia’s Inquiry into the destruction of Indigenous heritage sites at Juukan Gorge reported in October. Its report, ‘A Way Forward’ called for a new national framework of Aboriginal heritage protection co-designed with Aboriginal people. It recommended that the responsibility for Aboriginal cultural heritage, sitting under the environment portfolio, be reverted to the federal Minister for Indigenous Australians. It further called for a review of the Native Title Act 1993 (Cth) to address inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples under the ‘future act’ regime. The Committee was clear that this future work should recognise the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and reflect the key principle of Free, Prior and Informed Consent (FPIC).

The Committee’s report was precipitated by the shocking destruction of the Juukan Gorge cave, showing some 46,000 years of Aboriginal connection, by mining giant Rio Tinto.

In this post, I will explain that, in the wake of the destruction of the Juukan Gorge cave, and the Committee’s report, the Western Australian Parliament last month passed new cultural heritage legislation that continues to prioritise established mining interests over Aboriginal cultural heritage protection. The lessons that Western Australia tell us – so soon, so clearly – is that we need the Commonwealth Parliament to move with urgency on the reforms of the Committee, but they also, once again, underscore the pressing need for constitutionally protected structural change, as called for in the Uluru Statement from the Heart.

Western Australia introduces new cultural heritage legislation

Only a year after the destruction of the Juukan Gorge cave, and a month after the Commonwealth Committee reported, the Western Australian Parliament has passed the Aboriginal Heritage Bill 2021 in the face of widespread opposition. It was also the subject of an emergency request to the UN Committee on the Elimination of Race Discrimination, which explained how the law entrenches systemic racial discrimination against Aboriginal traditional owners.

Before its passage, the ALP majority government led by Premier Mark McGowan refused to listen to any of the State’s Aboriginal Land Councils that the Bill was unacceptable, although his office had previously assured stakeholders they would not pass the legislation without substantial Aboriginal support.  Aboriginal land councils and leaders rejected as superficial the State’s consultation on the legislative reform and called for a co-designed process to allow for traditional owners to increase protection of heritage sites. In the face of an Open Letter of Concern signed by 150 Aboriginal cultural leaders and eminent Australians alike, which pointed out that the Bill was again weighted in favour of mining and economic interests over Aboriginal heritage, and violated UN treaty law, Minister Stephen Dawson nonetheless argued the Bill would give stronger protection for Aboriginal heritage and was the right thing for his government to do.

The concerns with the Western Australian Legislation

The main concerns with the new Act relate to the ongoing role of the Minister to grant approval to mining companies and developers to damage and destroy heritage sites, over and in opposition to the wishes of Aboriginal custodians. The Minister says the new Act has replaced the old ‘section 18’ process – which had seen the state approve the damage and/or destruction of some thousands of cultural heritage sites. But it still gives the Minister the right to make a final decision about the site if the ‘proponent’ and traditional owners do not come to an agreement.

Under the new Act, the final decision therefore still rests with the Minister. This offers little solace: the Minister has in the past, really since the Act commenced in 1972, predictably provided mining companies and developers with permission to lawfully damage and or destroy heritage sites, as occurred in relation to Juukan Gorge.

The new Western Australia Act also adopts (and misuses) the language of international human rights law, indicating that Indigenous people must be given the opportunity to provide ‘free, prior and informed consent’ to the damage of sites. At the same time the law permits such damage by the Minister if Aboriginal people chose to protect the site (as is customarily the case!) This process clearly does not meet the test of FPIC which requires an absence of any element of coercion, and the right to say ‘no’ to harm, damage or destruction, in the context of the state being given the ultimate decision and having a long history of being pro mining and development rather than acting in the interests of Indigenous people and cultural heritage. The UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) has examined the test of FPIC and specifically notes

  1. Consent is a key principle that enables indigenous peoples to exercise their right to self-determination, including development that involves control over or otherwise affects their lands, resources and territories. With such an understanding, indigenous peoples are considered to engage with and are entitled to give or withhold consent to proposals that affect them.

Furthermore, the Act gives non-Aboriginal proponents several opportunities to appeal decisions where they feel aggrieved at a myriad of points in the process.  However, for Aboriginal people, there is no merits review of the Minister’s decision to approve the damage and destruction of Aboriginal sites. This disparity is racially discriminatory. It evidences a bias towards non-Aboriginal people and interests entrenched through the Act.

A failure to engage with Aboriginal people

Before it was passed, Aboriginal people worked to their best ability to highlight concerns with the Bill but these went ignored by the government. It would appear that the interests of the mining companies, and the billions of dollars of revenue to the state, were driving the government’s stance, given the hasty way the legislation was pushed through Parliament.

The experience of Aboriginal people with the government’s sponsorship of this Bill was a stark reminder that in Western Australia, there are no Aboriginal representative structures that allow for Aboriginal people and communities to engage with the state in any influential manner. The State had made a previous commitment to establish an Office of Aboriginal Accountability and Empowerment, ‘to make sure governments are held accountable for how they work with Aboriginal people in Western Australia, and to speak up about things that matter to Aboriginal people.’ It was, however, abandoned with no advice or explanation from the State.

Lack of constitutional recognition and protection

Western Australia has made no meaningful attempts to respect Aboriginal peoples rightful place as First Nations people in its constitutional arrangements or systems of governance. The constitutional amendment that has been achieved has fallen far short of structural reform that advances the interests of Aboriginal people in the State.

In 2015 the WA parliament, following extensive consultations, amended the State’s Constitution to acknowledge that Aboriginal people were the traditional custodians. The Constitution Amendment (Recognition of Aboriginal People) Act 2015 amended the preamble to include the following acknowledgement:

‘And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia’

When he was Opposition Leader, Premier McGowan said this was a ‘long overdue ….  act of genuine reconciliation designed to reflect the historical reality of Western Australia.’ This genuine reconciliation, and history, appear to have been forgotten by the McGowan government during the passage of the Aboriginal Heritage Act.

This preambular recognition of Aboriginal people had been preceded some years prior by the repeal of section 70 of the State’s original constitution of 1889 that stipulated that Aboriginal people were to receive one per cent of the State’s gross annual revenue.  The repeal of section 70 can be traced back to 1937, when Don McLeod, a prospector, began a campaign, arguing that politicians such as John Forrest, the then Premier, had wrongfully misappropriated what was owed to Aboriginal people using ‘trickery and deceit’. By removing section 70, the Premier and his government had acted in the state’s own vested interests. McLeod with Pilbara Aboriginal people began a legal challenge to the repeal of section 70, arguing that this was a breach of fiduciary duty, a claim rejected by the WA Supreme Court in 1996.

The recent events surrounding the Aboriginal Heritage Act 2021 also demonstrate that the prohibition of racial discrimination under the Racial Discrimination Act 1975 (Cth), which includes direct and indirect forms of discrimination, have proven to be largely futile for Aboriginal people. As outlined in this post, and the subject of the emergency request to the UN, modern racism is still prevalent in legislation passed in Australia today.

Lessons from Western Australia: The Importance of Uluru

In May 2017, Aboriginal and Torres Strait Islander people from across the country met at Uluru to look at constitutional reform, developing the Uluru Statement from the Heart and calling for a process of structural reform expressed as ‘Voice, Treaty and Truth’. The call for a substantive amendment to the Commonwealth Constitution through the establishment of an enshrined First Nations Voice was rejected by then Prime Minister Malcolm Turnbull who incorrectly described it as an unacceptable ‘third chamber of parliament’. The Morrison Government has now consulted nationally on an Indigenous Voice. But it has not indicated that it will support constitutional entrenchment, and the model proposed has been heavily criticised, including for its weak relationship with the Parliament (see for instance, submission by the Kimberley Land Council to the Indigenous Voice co-design consultation).

In the face of the Western Australian legislation that entrenches racial discrimination, the federal Minister for Indigenous Australians, Ken Wyatt, has now agreed to work with the First Nations Heritage Protection Alliance, representing Aboriginal Land Councils, Native Title Representative Bodies and Aboriginal and Torres Strait Islander Community Controlled Organisations, to develop national principles to protect Aboriginal heritage, as recommended by the Commonwealth Inquiry.

It is also clear that the Commonwealth Parliament has the power – including under the external affairs power – to override the Western Australian Aboriginal Heritage Act 2021, and lawfully ensure Aboriginal people’s protection of heritage sites.

What happened in our state, to heritage lands and sacred sites, highlights our continued dispossession as peoples without recognised sovereignty and Treaty rights, at the whim of a state acting in concert with multinational mining interests. It shows the weakness and hypocrisy of the state’s reconciliation promise and symbolic constitutional recognition. And it reminds Aboriginal people to continue to demand meaningful structural change, including at the Commonwealth level – where the ultimate power to make laws for Aboriginal people resides – and as articulated in the claim for Voice, Treaty and Truth. This is rightfully ours and moreover critical to the realisation of the UNDRIP, especially the right to our lands, and ancient heritage and culture.

Update: On the morning this post was published, news was received that the UN Committee on the Elimination of Racial Discrimination had responded to the emergency request to it mentioned in this post, expressing its concern about the allegations raised, requiring a response from Australia, and encouraging Australia to consider engaging with the United National Expert Mechanism on the Rights of Indigenous Peoples. The response of the Committee can be read here.

Dr Hannah McGlade is a Bibbulmun Noongar from Western Australia. She is an Associate Professor at Curtin University and a member of the UN Permanent Forum for Indigenous Issues.

Suggested citation: Hannah McGlade, ‘Western Australia after the Juukan Gorge Inquiry: Little solace for Aboriginal people’ on AUSPUBLAW (10 December 2021) <https://auspublaw.org/2021/12/western-australia-after-the-juukan-gorge-inquiry-little-solace-for-aboriginal-people/>