David Prestipino – June 12, 2023
There is concern from both the farming and First Nations communities as Western Australia prepares for new Aboriginal cultural heritage legislation to come into effect.
The new legislation demands landowners obtain permits before undertaking acts such as digging fences and planting trees on properties more than 1,100sqm.
Farmers and lawyers for Traditional Owners are concerned major stakeholders are not prepared for the changes and want the new laws under the Aboriginal Cultural Heritage Act to be delayed from its slated July 1 start date and more funding for First Nations groups that will deal with cultural heritage issues with project proponents.
The Act aims to give First Nations people a greater say in managing their cultural heritage but farmers and pastoralists fear it will leave them entangled in red tape, as it requires they follow a complicated and potentially costly process before undertaking basic tasks like ripping up a fence.
A major change in the Act, that replaces legislation from 1972, is the introduction of a new administrative arm, Local Aboriginal Cultural Services (LACHS), which will assess if activities will cause harm to First Nations cultural heritage.
Landholders must engage LACHS before applying for a permit to carry out a potentially harmful activity, with the Aboriginal Cultural Heritage Council then assessing advising whether to grant the permit.
Gilbert and Tobin partner Marshall McKenna, who works with First Nations corporations, said the guidelines had insufficient detail on how Cultural Heritage Management Plans, a document on how an Aboriginal heritage site might be damaged or moved, would be created and said the LACHS required more funding.
“Some grants have been foreshadowed for capability building but, in my view, and in the view of many traditional owners expressed through the forums, the funding that’s been proposed is simply insufficient,” he said.
The Pastoralists and Graziers Association of WA last week demanded the roll-out be delayed by at least six months.
“The Act will create a new, unique and untested approvals system for which there is no capacity at this time to seek approvals online, meaning businesses, such as pastoralists, farmers, prospectors and those in civil construction, will have to cease all works until approvals, which can only be lodged after 1 July, are then processed and approved or rejected,” its online petition stated.
“In view of this intolerable situation and risk to the WA economy, we call on the Government to delay the promulgation of the Act… to establish a working approvals system which allows for a reasonable period of online interaction, lodgment, and approval of permits.”
PGAWA president Tony Seabrook believes the new laws are “overreaching” and would enrage even some First Nations people.
“There is no one in my industry that will willfully destroy a site of cultural significance,” he said.
“This will just interfere with everything we do and bring a huge time delay and huge cost to what we call normal farming business.”
Challa Station pastoralist Debbie Dowden feared planning authorities would be inundated with applications when the new laws take effect, leaving landholders waiting indefinitely for approvals.
She was saddened by the WA Government’s lack of acknowledgement of the history of many pastoralists being custodians of their sites.
“The way we honour Indigenous culture on this country is not being honoured; it’s being taken away from us and made into a financial transaction,” she said.
Mining and Pastoral Region MLC and Liberal heritage spokesperson Neil Thomson is among several Opposition MPs seeking to delay the introduction of the Act, with others including Aboriginal Affairs spokesperson Mia Davies and Agriculture spokesperson Colin de Grussa.
Liberal leader Libby Mettam urged new WA premier Roger Cook to demonstrate his consultative approach to leadership and delay the introduction, with LACHS yet to be established.
“Getting it wrong could have unintended adverse impacts on productivity, jobs and industries WA’s economy relies on,” she said.
She said Aboriginal Affairs Minister Tony Buti admitted during a parliamentary estimates hearing a fortnight ago that guidelines had yet to be finalised and the IT system to administer applications and permits was still in development.
A spokesperson for Dr Buti told National Indigenous Times the state government has no plans to delay the implementation date.
“It has been unlawful to harm Aboriginal cultural heritage in Western Australia for more than 50 years, since 1972 – and that will not change. What the new Act does is to ensure there is far more direct consultation with Aboriginal people on the preservation of Aboriginal cultural heritage,” he said.
“These reforms follow more than five years of extensive consultation. Input from more than 1,000 people who attended more than 90 workshops held across metropolitan, regional and remote areas last year has informed the documents. This is in addition to more than 220 submissions and a broad range of direct feedback received from engagement with Traditional Owners, Aboriginal people, landowners and industry representatives.
“Under the new laws, activities that won’t impact Aboriginal cultural heritage will impose no additional obligations for landowners. An exemption will apply for all residential properties under 1100 sqm. Such an exemption does not currently exist.”
Dr Buti’s spokesperson also said exemptions also apply for maintenance and ‘like for like’ activities.
“For example, a farmer planting a crop, running livestock or replacing a fence or other existing infrastructure will be exempt and not require approval. Existing mining activities and maintenance of water, electricity and other property infrastructure will all be exempt and will not require approval. However, where activities may impact Aboriginal cultural heritage, a permit or management plan may be required,” he said.
“Local Aboriginal Cultural Heritage Services – or LACHS – will be designated as the key point of contact with local expertise. More than 20 organisations have applied for grant funding and the government is working with eligible organisations to support their designation.”