Sorry, not sorry: the operation of WA’s Aboriginal Heritage Act
John Southalan
11.09.20
Western Australia’s Aboriginal Heritage Act (the Act) has the stated aim to provide for ‘the preservation, on behalf of the community, of places…traditional to the original inhabitants of Australia’. However, the Act’s use has facilitated the legally-authorised damage of Aboriginal sites more often than it has provided preservation. Many Aboriginal sites have been harmed through the Act’s use (or avoidance), with industry and government then professing sorrow or aspirations that such outcomes won’t recur. Like the fake cry of ‘wolf’, there comes a time when words or apology lose any significance.
This post examines the many instances where the Act has enabled damage to Aboriginal heritage in WA. These are cases where the Act’s protections have been sidelined, often followed by statements of regret and desire to work toward a better system. The events regarding damage in Juukan Gorge, and responses to that, reveal this familiar pattern … and the need for fundamental change.
Basics of WA’s Aboriginal Heritage Act and system
WA has some of the oldest sites of human existence on the earth; it’s also home to some of the world’s richest resource deposits. Mining provides much of WA’s economic activity, and the Act is a space where expressed aims of protection meet the reality of economic power in WA.
The Act was passed in 1972, has been amended a couple of times since, and establishes a basic level of protection but also a process for exceptions. The scheme is this: the statute makes it an offence to damage an Aboriginal site (section 17). The statute also lets parties apply for ministerial consent to use land in a way which may damage Aboriginal sites and, if the Minister consents, gain immunity from committing any offence under the Act (section 18). An application for ministerial consent is first considered by a group established under the Act, called the Aboriginal Cultural Materials Committee, which makes a recommendation to the Minister. The Minister then decides whether to issue (or refuse) consent, and can subject any consent to conditions. The Act also enables the Minister to authorise traditional custodians for any place to undertake the Minister’s duties in relation to that place (section 9 – which could include deciding s 18 consents).
The WA Supreme Court has explained the s 18 consent process as giving ‘a right to do what would otherwise be a criminal act, [but which] does not provide a “blanket clearance”’: Minister for Indigenous Affairs -v- Catanach. Despite this, the process is regularly characterised and described as ‘approval’ or ‘clearance’ of heritage – not only by industry, but by the Head of the Department administering the Act, and also by tribunals and courts. Statistics of how the Act has worked (drawn from Parliamentary Hansard and Government information) show how that perception has arisen.
The Act’s provision for Ministerial consent allowing destruction has led courts to observe that the Act does not ensure effective protection of Indigenous heritage. The courts’ cautions are reinforced by the (above) prevalence of Ministerial consents allowing damage. These limitations in the law are further weakened by inadequate administration. A 2011 report of the WA Auditor General found that the Department overseeing the Act ‘has not effectively monitored or enforced compliance with conditions …[on s 18 consents]. As a result, heritage sites may have been lost or damaged without the State knowing or acting’.
Governmental avoidance and misuse of the Aboriginal Heritage Act
The above has shown the Act’s limited capacity to protect Aboriginal heritage. Notwithstanding that, as the following cases illustrate, the Government has often sought to sideline the Act and Aboriginal parties seeking to rely on the limited protections which it provides.
In Noonkanbah Pastoral v Amax Iron (1979) the Supreme Court examined disputes regarding heritage impacts from drilling on Nookanbah station. The Act’s consent process at that time was the responsibility of the WA Museum Trustees. They examined the cultural information and refused consent. The Government directed the Trustees to consent to the impacts. The Act was then amended, in 1980, to relocate the consent power to the Minister.
The High Court case of Bropho v WA (1990) dealt with a proposed redevelopment of an industrial site on the Swan River, involving impacts on Aboriginal heritage. The Government considered it did not need to follow the Act, arguing the legislation did not apply to the Crown. The High Court rejected that position.
With the Act’s operation and scope confirmed by the High Court, the WA Government and Parliament subsequently faced a situation where Aboriginal heritage existed above an iron ore deposit discovered in a national park. The Committee’s recommendation was against consent to damage some sites (Jack Dann v GPA Distributors (1995), [15]). The WA Parliament passed a law excising the area from any application of the Act: Aboriginal Heritage (Marandoo) Act 1992.
The agency responsible for administering the Act (and therefore processing s 18 requests) issued ‘Guidelines’ on what it considered necessary for a site to come within the Act’s protection. The Guidelines were used to remove various entries from a register of Aboriginal sites; and one Aboriginal group took court proceedings regarding a s 18 application: Robinson v Fielding (2015). The WA Attorney General argued that the Aboriginal group (whose sites and culture were being considered) lacked legal standing to even address the Court, but the Court rejected the Attorney’s argument. Justice Chaney also ruled that the Government’s Guidelines had misconstrued the statute and improperly narrowed the Act’s protection.
In 2009 WA’s Corruption and Crime Commission inquired and reported on conduct of Ministers and lobbyists concerning a matter under the Act. This involved another example where the Act’s Minister rejected the committee’s recommendation and made a decision enabling construction for mining. What attracted the Commission’s attention here, however, was the provision of confidential information (by Government officers) to lobbyists for a mining company. While the Commission found confidential information had been passed, it considered this insufficient to constitute misconduct under WA’s corruption laws.
Minister for Indigenous Affairs v Catanach (2001) dealt with a case where the Committee recommended a conditional consent. After this decision, the CEO of the Department responsible for the Act spoke with the relevant developer. The Court reported that the CEO said ‘his inquiries indicated that the site had no Aboriginal heritage significance. He said that he was unable to find any evidence that would support the withholding of consent. [and that] he was going to meet with the Minister…[and] that he [developer] would “not need to go back to the Minister for any further consent for any further development on the site” ’.
In Minister for Indigenous Affairs; ex p Woodley (2009), the Court noticed a difference between what the Committee had decided to recommend to the Minister, and what was actually reported to the Minister via the Department. The Chief Justice found ‘That came about because decisions had been made within the department as to the terms in which that recommendation should be expressed. There was no reference back to the committee or any member of the committee before the officers of the department changed those terms’.
The Robinson v Fielding case was noted above. During those proceedings, it became apparent that the Department’s Registrar (who has key functions under the Act) had written to the relevant Aboriginal group with incorrect information about the Committee’s decisions. The Court, dryly, observed that the ‘assertion in the Registrar’s letter is not supported by the evidence’.
Most recently, in 2019, another case revealed the Committee’s decision being misrepresented to the Minister. In Wintawari Guruma v Minister Wyatt the Court heard that ‘the briefing note which was provided to the Minister included “conditions said to have been recommended by the Committee that had not, in fact, been considered or recommended by the Committee”’.
Limited judicial oversight
The Act includes an appeal process for parties who consider that a Minister’s s 18 decision was wrong. The appeal (or ‘review’) is heard by WA’s State Administrative Tribunal (SAT). Under an earlier version of the Act, this had been an appeal to the courts and, in Robert Bropho v WA (1990), Rowland J explained that ‘it is almost unthinkable that an Aboriginal [person] who had a sufficient interest in the subject matter of the appeal would not be given liberty to be heard’. That case involved the Committee’s recommendation that s 18 consent be refused, despite which the Minister decided to grant consent, without giving the relevant Aboriginal group notice or opportunity to be heard before deciding against the Committee’s recommendation. Justice Rowland considered this a breach of natural justice, and quashed the Minister’s decision. That was overturned by WA’s Full Court (The State of WA -v- Bropho (1991)) with the majority ruling that the Aboriginal group had no right to be heard, and reinstating the Minister’s decision.
The Act was subsequently amended to give SAT the jurisdiction for s 18 reviews, and also to clarify that the review option is only for the developer who had sought the consent. Aboriginal persons, whose heritage is being considered in the Minister’s s 18 decision, have no equivalent right of review. The Parliament made clear this discrimination on passing the amendments, and SAT has enforced it: Traditional Owners (Nyiyaparli) v Indigenous Affairs (2009).
Separate from the Act’s specific review option, however, any interested party can commence proceedings in the Supreme Court alleging improper conduct under the Act. Irregularities under the Act have been examined through this avenue. Before considering these, it is relevant to review how courts deal with government irregularities more generally. There is an intriguing difference between these approaches and how WA courts have responded to non-compliance with the Act.
In Forrest & Forrest P/L v Wilson (2017), the High Court examined the effect of non-compliance with WA’s Mining Act requirements in granting mineral titles. The Court’s majority ruled that this invalidated the rights the Government had sought to grant, because WA’s Constitution requires dealings with land to be controlled by Parliament (through statutes) and ‘the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration’.
That approach has since been applied more widely, with the Full Federal Court in Yanunijarra Aboriginal Corp v WA (2020) examining an objection lodged by an Aboriginal group which had a mistake in the paperwork (using person’s names instead of the corporation which formally held the native title rights of those persons). The Court unanimously ruled that the group’s objection was invalid because of non-compliance with the Native Title Act. The Federal Court reasoned that the procedures in the Native Title Act ‘may not be directly concerned with “the disposition of the interests in the resources of a State” (Forrest & Forrest), but they are concerned with a closely related subject matter. In our view, the rationale to which the majority referred in Forrest & Forrest is also apposite in the present context’.
There have been many occasions when the courts have been faced with clear evidence that the requirements under the Act have not been complied with by government, some of which were already outlined above. The courts have, almost universally, adjudged government non-compliance with the Act as not invalidating any consent to damage Indigenous sites.
Minister for Indigenous Affairs; ex p Woodley was one of the cases where the Committee’s recommendation had been re-written before being provided to the Minister. The Chief Justice ruled that, to comply with s 18, the Minister must be provided with the substance of the Committee’s decision and recommendations; and that had not occurred here. However, the Minister told the Court that, even if the Committee’s recommendation had been accurately conveyed, the Minister would not have accepted it and would have made the same decision. The Chief Justice relied on that in dismissing the challenge against the Government’s actions. The Court’s reasons stated:
‘the quashing of his [the Minister’s] decision would not impact upon or alter any of the factors which he regarded to be material to the determination he made. … I have also concluded, as a matter of fact, that the Minister would not direct that the matter be further considered by the committee. … From the point of view of the Minister, the committee’s work has been done, its recommendation is known and that recommendation would make no difference to the substance of the Minister’s decision’.
Subsequent cases have reinforced that the Minister can ignore the content of the Committee’s recommendation – it is only the fact of a recommendation that is required. The Minister ‘is left at large to reach a decision…as the Minister sees fit’: Wintawari Guruma Corp v Minister Wyatt.
In the Wintawari Guruma case, the Government conceded that the Committee had not considered the relevant matters, and thus had not properly provided a recommendation to the Minister. Justice Martin ruled that the Indigenous group had not proved that, and dismissed the group’s challenge. The Judge reasoned that the Minister did not need to inquire or be satisfied that the Committee’s decision was legally valid before acting on it. Unless, and until, the Committee’s decision is quashed (eg. by writ of certiorari), the Minister still has power to give s 18 consent: Woodley v Indigenous Affairs Minister (2009).
The Act requires that the Committee have an anthropologist as one of its members. The Government’s failure to appoint an anthropologist has been held not to impact the Act’s operation: Abraham v Aboriginal Affairs Minister (2016).
In Van Leeuwin v Dallhold Investments (1990) the Court heard questions about an injunction to prevent work impacting heritage on Rottnest Island. Justice Ipp accepted evidence of the developer’s estimated possible losses of future profit, but refused to accept the Aboriginal evidence about explanation of impacts because that was only their belief, thus hearsay, and couldn’t be evidence which required an ‘expert’.
The courts’ jurisprudence means that, provided the Committee has sufficient information from the Aboriginal people who might be affected, there is no requirement for the Minister to hear from those people before deciding. Misleading actions by the Department can occur because the Minister’s power (and validity) to consent under s 18 depends only on being given some information said to be the Committee’s recommendation. It is possible for the Committee’s decision to be challenged before the Minister has acted. But there is no requirement under the Act for anyone to be notified of the Committee’s decision. This contrasts with the specific requirement under s 18 that, after deciding on consent, the Minister ‘shall forthwith inform the owner in writing of his decision’.
Where to now?
A recent instance involving the Act is Rio Tinto’s damage to Aboriginal sites to access more iron ore. This is currently the subject of a Commonwealth Parliamentary Inquiry. Many parties are involved and making submissions. And, once again, these involve expressions of sorrow or desire to improve, this time from Rio Tinto, the Minerals Council of Australia, Woodside and others. The WA Government Department responsible for the Act, and which administered the consent legally permitting the damage to Juukan Gorge, also gave evidence. The Department stated:
‘The recent destruction of the rock shelters in the Juukan Gorge of the Pilbara region is devastating for all parties involved and was clearly avoidable. …
[T]he Act’s greatest weaknesses is that it does not expressly provide for consultation with Aboriginal people in the identification, management and protection of their heritage. … The Act is also not supported by a strong enforcement or compliance regime. …
The Western Australian Government recognises the need for change. In March 2018 the Minister for Aboriginal Affairs, the Hon Ben Wyatt MLA, announced the launch of the review of the Act. … The Aboriginal Cultural Heritage Bill 2020 (Bill) will be the culmination of the review…
The Bill will represent a fundamental shift in the approach to, and protection of, Aboriginal heritage in Western Australia. It will be a modern piece of legislation with three key focus areas: Aboriginal voices, improved protection, and better decisions.’
Given the track-record of previous expressions of how things will improve, there may be some cynicism about these types of statements. If all that eventuates is more promises of how things will improve, the cynicism is justified. Justified, unless there actually is ‘a fundamental shift in the approach to, and protection of, Aboriginal heritage in Western Australia’.
What might a fundamental shift include? There are, obviously, many areas involving conflicting interests regarding development and its impacts. Numerous WA statutes acknowledge these, and locate resolution at the highest level – Parliament – enabling transparency and accountability for these difficult and contested decisions. For example, no mining lease can be granted in a WA national park without the agreement of both houses of Parliament (Mining Act, s 24(4)); and – for non-Indigenous heritage – the removal of a place from the State Register of Heritage Places requires the approval of both house of Parliament (Heritage Act, s 51 (1)).
The Government’s administration of the Act does not reflect this type of transparency or balance. Cabinet, or Parliament, seem more appropriate places to consider decisions involving community interest in preservation. There, a Mining Minister or agency can put the case for development and its accompanying impacts, and the Minister or agency responsible for the Act can explain the importance of preservation. But, many times, it is those administering the Act who seem to be prosecuting the case for development. Just three months ago, in May 2020, the Minister for Aboriginal Affairs told Parliament ‘the obligations under the Aboriginal Heritage Act 1972 are not an impediment to the effective operations of the mining industry’. The events in Juukan Gorge reinforced that.
[Post script: after this piece was written, the WA Government released a draft Aboriginal Cultural Heritage Bill for consultation. That bill does have improved procedures, but still contains a Ministerial over-ride ‘in the interests of the State’ (cl 147). That is essentially the same reason which was proffered in various of the cases discussed in this post. Thus, it remains to be seen whether there really will be ‘a fundamental shift in the approach to, and protection of, Aboriginal heritage in Western Australia’]
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John Southalan is an Adjunct Academic and member of Resources Law Network. He was a land-council lawyer in 2000-2001 and assisted the Puutu Kunti Kurrama People and Pinikura People begin a native title claim; and, from 2007-2010, he was the Rio Tinto Research / Teaching Fellow at Dundee University. In neither role, did he have any involvement nor knowledge regarding the agreements between the company and the Aboriginal groups, which were entered in 2011. The contents of this post are written entirely from publicly available material, which has been identified.
Suggested citation: John Southalan, ‘Sorry, not sorry: the operation of WA’s Aboriginal Heritage Act’ on AUSPUBLAW (11 September 2020) <https://auspublaw.org/blog/2020/09/sorry-not-sorry-the-operation-of-was-aboriginal-heritage-act/>