HON ROBIN CHAPPLE (Mining and Pastoral) [1.04 pm]: I move —
That this Legislative Council debate the failure of the nation and the state of Western Australia to protect some of the world’s oldest Aboriginal and archaeological sites and proffer ideas to improve the situation.
[speeches and comments of various members]
HON ALISON XAMON (North Metropolitan) [2.38 pm]: I rise to make some comments on this motion brought forward by my colleague Hon Robin Chapple who, as has been widely acknowledged in this chamber, has been passionate about bringing Aboriginal heritage issues to this chamber since he was first elected 20 years ago, but was actually active in this space long before that. Aboriginal heritage has received particular prominence in recent times as a direct result of the destruction of the rock shelters at Juukan Gorge. I do not know about other members, but I received correspondence around that issue from a range of people whom I would not ordinarily hear from, who were devastated that this was legally able to occur and who wanted to know how something could go so terribly wrong. I think it was particularly jarring that this happened on National Sorry Day and in the current political environment, in which we are starting to talk more about the rights and needs of First Nation people, not only here, but also globally, in terms of the Black Lives Matter movement, so it has a particular currency that is very distressing for people right now. I note that as a direct result of the destruction of these shelters, Reconciliation Australia withdrew its relationship with Rio Tinto. I think that sends a very clear message to our mining companies; that is, mining companies are able to undertake these activities only in so far as people are unaware of them, and that their social licence to mine is seriously on the line. That is one of the reasons that we have to finally grapple with the complex issues around how to undertake the protection of Aboriginal sacred sites.
I know that there is a general perspective amongst a number of traditional owners that one reason the Aboriginal Heritage Act is the way it is is that mining companies want it that way and simply have too much influence. We can point to a range of provisions in the act that highlight the disparity between traditional owners and mining companies—for example, the fact that mining companies can appeal decisions but traditional owners cannot. One of the key concerns that has been raised with me by traditional owners is that they very often cannot speak out when they are concerned that sites that are sacred to them are potentially at risk, because they have signed contracts, particularly in the Pilbara, that explicitly stop them from being able to speak out.
We know that Aboriginal people want to and need to be able to access mining royalties as well as job opportunities, but that does not mean that they should ever have to sign away their right to complain or raise concerns, particularly considering that very often when they are left to sign those contracts, the work to actually identify where those sites are has not even been completed. As far as I am concerned, that practice should basically not be allowed. We know that prior informed consent means not having it hanging over your head that you are going to be denied what should rightfully be yours anyway if you dare to speak out.
We know that Aboriginal cultural heritage provides a very important link for Aboriginal people to their past, present and future. Our Aboriginal cultural heritage is also really important to a lot of Western Australians and I think it is inherently valued. As has already been said, the Aboriginal Heritage Act has not changed substantially in the 48 years that it has been in operation, having been amended only twice in that time. Over its long history, the act has imposed virtually no impediment to development or mining in WA, and it has long been recognised as being incredibly insufficient in protecting Aboriginal heritage.
The failure to prioritise this very well recognised need for change has led us to the current situation in which we have experienced loss. Unfortunately, we are continuing to lose precious Aboriginal heritage, and we know that other sites are at risk right now. A range of problems have been identified with this act. I note that the minister talked about some of the issues with the act that the government is hoping to canvass in a bill that we will hopefully see before the expiry of this term of government. The act does not provide adequate consultation, there is no acknowledgement of the concept of self-determination and it fails to mandate the consultation of Aboriginal custodians regarding Aboriginal cultural heritage. The enforcement provisions are woefully inadequate, with prosecutions for offences needing to occur within too narrow a time frame. I think the special defence of “lack of knowledge” is particularly problematic because it means that it is a defence for a person to prove that they simply did not know something. Every member would recognise that we cannot have those sorts of provisions within legislation such as this. Concerns about the inadequate penalties that have long been in this legislation have already been raised. Overall, the act offers quite ineffective protections, and is insufficient. There is a significant backlog of sites to be assessed to determine whether they will be considered an Aboriginal site and placed on the register. There is also a lack of transparency, and decisions are not published.
Regarding the Aboriginal Cultural Material Committee, Hon Peter Collier referred to the sheer volume of information that that very small entity is expected to make its way through. I know that that is a genuine concern. A concern has also been raised with me about the poor quality and standard of reports that are often presented to the ACMC, which makes the decision-making of that body difficult. Another concern has been around the ethical and professional capability of the consultants who often provide those reports. A small pool of people have this expertise within WA and they often need to go between working for mining companies and providing these reports. The concern is that they will have a conflict of interest as they will want to make sure that they maintain their long-term job prospects, so that is a challenge that will have to be addressed.
The role and function of the ACMC is to assess sites and make recommendations. The recommendations of the ACMC are not open to third party appeal. As I have said, only the proponents can appeal and there is no ability for a review by Aboriginal people. The lack of public consultation under the act before decisions are taken on applications to destroy sites or heritage values is problematic. The act also contains no provisions for the repatriation of Aboriginal remains. There are a range of other concerns. We need to always remember that Aboriginal people are the most appropriate decision-makers about their own heritage, in accordance with their traditional customs and beliefs. Our legislation needs to recognise this as well. I think it is a serious failing that the current act does not do that.
I remind members that we have broader international obligations around this as well. Free prior informed consent and the right to protect sacred sites are actually enshrined within the United Nations Declaration on the Rights of Indigenous Peoples. Article 25 refers to —
... the right to maintain and strengthen their distinctive, spiritual relationship with their traditionally owned or otherwise occupied and used lands ...
Article 26 reads —
States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 31 reads —
... the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions ...
It continues —
In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
These are international expectations of how we will deal with First Nation people and their sites. Frankly, Australia, and Western Australia in particular, is failing.
We need to remember that it is not only about legislation. The act is one thing, but if the culture of the agency and the government does not change, then ultimately it will not be effective. A very high proportion of applications to impact on Aboriginal heritage sites are being approved, and it is considered to be normal for this to occur. I think that needs to change. It should only ever be in exceptional circumstances that approvals are given to destroy or negatively impact on heritage sites. We will never see broader community acceptance of cultural values if our legislation allows for those values to be trumped by every other short-term economic or political consideration. Time and again we read reports and inquiry recommendations that acknowledge the importance of connection to country and to cultural healing in addressing Aboriginal suicide and closing gaps in health, education and justice. I will quote from the government’s statement of intent on Aboriginal youth suicide, which states —
Acknowledging the vital role of culture in ensuring the long-term wellbeing of Aboriginal children and young people ...
It is specifically recognised that maintaining a connection to land and culture is a critical part of our First Nation peoples’ wellbeing. The government has said that it will develop a statewide cultural framework that focuses on cultural programs that will enhance wellbeing, reinforce cultural identity and build resilience. The government also talks about encouraging reconciliation and understanding by promoting broader Aboriginal culture, yet here we are talking about the destruction of Aboriginal heritage. I think it is appalling that we do not seem to value culture appropriately and we acknowledge it only when it suits us, yet when heritage and culture stand in the way of big business and money, we far too often see clearing and demolition permits being handed out.
I note that the review of the Aboriginal Heritage Act has been ongoing since 2017, following an earlier review in 2014. I understand that drafting is still underway, but there is huge concern that we cannot wait until that bill comes through. I want to relay to the house that it has been conveyed to me that until such time as we have a new and appropriate Aboriginal Heritage Act, traditional owners are seeking a moratorium on all section 18 assessments. They want that halted right now. There is a genuine concern to make sure that those cannot proceed. We need to commit to national standards as a matter of priority and ensure that these processes are captured by any development agenda that is progressed.
Traditional owners have, effectively, lost trust in the process and have lost trust in industry to do the right thing. That is a problem for industry, but it is also a problem for the broader Western Australian community. Most importantly, it is a problem for First Nation people. We have to do a better job on this. This has been hanging around for a very long time. We cannot keep getting distressed every time another valuable site is lost forever. We need to ensure that we have some short-term plans in place to halt the destruction now. Like everybody else, I look forward to finally seeing a new act, but we will also have to look at the culture around how we value Aboriginal sacred sites.
[speeches and comments of various members]
Question put and passed.