Rio Tinto’s destruction of a 46,000 year old, registered Aboriginal heritage site, Juukan Gorge in May this year, has exposed the weakness of the Western Australian Aboriginal Heritage Act 1972 (Act).  But Aboriginal representatives say a newly drafted Aboriginal Cultural Heritage Bill 2020 probably won’t change anything; they’re not hopeful that Aboriginal heritage sites in WA will be protected in the future.

There has been a myriad of negative responses to the destruction of Juukan Gorge for Rio Tinto – internally, externally, domestically and globally.

The public outcry has brought close scrutiny to how Aboriginal heritage sites are allowed to be destroyed and who gets approval to do it. A federal Joint Standing Committee on Northern Australians currently underway and due to complete on 30 September is keeping attention firmly focused on the issues.

The fallout for Rio Tinto has already included staff denied their lucrative bonuses and investors and superannuation fund managers withdrawing investments to the company and some calling for stronger action. 

According to Reconciliation Australia (RA) Rio Tinto’s actions betrayed the trust of their relationships with the Puutu Kunti Kurama and Pinikura (PKKP) Peoples. It revoked the  miner’s Elevate Reconciliation Action Plan (RAP) status and suspended Rio Tinto from its RAP program that includes the likes of BHP and other mining corporates.   

A key response from the McGown government of Western Australia has been to launch draft legislation that is intended to replace the current Aboriginal Heritage Act 1972 (WA). 

The new Bill was promised by the WA government when it took office in 2017. On 3 September it called for submissions from interested parties (Aboriginal people, industry representatives, heritage professionals and the Western Australian community) to be submitted by 9 October 2020 on the draft legislation.

The WA government claims that the Aboriginal Cultural Heritage Bill 2020 is “a modern approach to protecting Aboriginal cultural heritage in Western Australia that will reset the relationship between land users and Traditional Owners and transform how Aboriginal cultural heritage is identified, protected and managed.”

It contains higher penalties for damages to Aboriginal heritage with fines up to $10 million dollars for unauthorised destruction. Although the new powers under the Bill are not unwelcome, some Aboriginal cultural advocates say unauthorised destruction is not the problem.

The event has actually highlighted the unfair balance of power between Aboriginal heritage preservation of the Traditional Owners versus the mining sector and the political and financial interests in Western Australia. Aboriginal representatives say this act was not isolated; they state that destruction of this type occurs almost every day in Western Australia. 

The South West Aboriginal Land and Sea Council, (SWALSC) is the peak body caring for Noongar lands in SW Western Australia. One of their key responsibilities is to act to protect significant Aboriginal cultural heritage sites in its region as instructed by members.

SWALSC chief executive officer Wayne Nannup,  told The Fifth Estate that it doesn’t matter what is in the rest of the new bill if there remains a carte blanche mechanism that allows ministerial privilege to approve the destruction of registered Aboriginal heritage sites.

Nannup says Section 139 in the new bill contains powers similar to those of Section 18, that would also allow the minister for Aboriginal Affairs discretionary power to permit the destruction of Aboriginal cultural and heritage values.

Section 139 of the bill states that, “The applicant for the approval of an ACH management plan or an Aboriginal party to the proposed plan may, in writing, object to the minister if the ACH Council refuses to approve an ACH management plan.”

SWALSC says that since the McGowan government came to office there have been 463 applications to destroy sacred Aboriginal sites for the purposes of mining in the past three and a half years – and that 99 per cent of applications have been approved for the term of the McGowan government.

The sting in its tail is that the Minister for Aboriginal Affairs and Land in WA, is Aboriginal politician Ben Wyatt.

SWALSC’s concerns are shared by cultural advocate and Traditional Owner Kado Muir who also stated that:

“This is not a one off event- it’s part of a cumulative process, it’s part of an industry and government collaborating to open up land and act against the wishes of Aboriginal people.” 

Perth Airport gained approval over Munday Swamp

A similarly contentious approval under Section 18 of the Act was used in 2018 for the expansion of Perth Airport over Munday Swamp, a 20 hectare ceremonial site and a a registered Aboriginal Heritage site. The SWALSC tried unsuccessfully to protect the site.

Since the late 1800s Munday Swamp has not only been a recognised significant Aboriginal ceremonial and cultural site for the Noongar people but also a significant environmental habitat for native flora and fauna.

The Perth Airport applied for permission to use about 10 per cent of the significant site and the minister consented.

The decision came down in December 2019 following an SWALSC appeal. The organisation says that even this relatively smaller figure of destruction is significant and will create further damage particularly to the significant bird life which will be “managed” to avoid collision with higher levels of airline traffic. Should the draft bill be enacted, Perth Airport would be able to make the same application under the new section 139.

It’s not hard to find similar examples with a cursory search of Aboriginal Land councils in WA. The Kimberley Land Council’s website highlights another instance regarding the destruction of sacred sites in the East Kimberley. 

The new Aboriginal Cultural Heritage 2020 bill consultations close to submissions on 9 October 2020. Community information sessions start on 21 September.

This article is part of a series on indigenous businesses and was produced with the support of the City of Sydney.