WA Labor looks set to amend 1972 Heritage Act rather than push ahead with unpopular new legislation

Handing Aboriginal groups the right to appeal approvals to damage cultural heritage is one of the key changes the Cook Government will consider as it seeks to amend the 1972 Act rather than push ahead with highly contentious replacement legislation. As revealed by The West Australian, the Government is poised to completely scrap deeply unpopular new heritage laws that came into effect just over a month ago. The decision comes after Attorney-General John Quigley was asked to review WA’s Aboriginal cultural protection scheme, a process that included input from Solicitor-General Joshua Thomson. With widespread community anger and anxiety forcing Labor to ditch the laws it rushed through Parliament in late 2021, Cabinet will meet on Monday to instead consider a series of improvements to the 1972 regime. Those 50-year-old laws have been heavily criticised for their exclusion of Indigenous Australians and paving the way for Rio Tinto’s legal blasting of ancient rock caves at Juukan Gorge in 2020. It is understood one of the changes on the table would allow traditional owners to challenge controversial Section 18 approvals through the courts. The 1972 Act makes it illegal to damage Indigenous cultural heritage, but allows landowners to apply to the Aboriginal Affairs Minister for consent to do so anyway. If granted, those so-called Section 18 approvals provide immunity from prosecution under the Act. Developers are permitted to appeal rejected Section 18s, but the same legal avenue is currently denied to Aboriginal groups seeking to overturn an approval. Another potential change would broaden opportunities for traditional owners to provide input into Section 18 applications before they are determined by the minister. Currently, all Section 18s are considered by a group known as the Aboriginal Cultural Materials Committee, which then makes a recommendation to the minister who holds the ultimate decision-making authority. There is no legal requirement for anyone to be notified of the ACMC recommendation before it is handed to the minister — potentially robbing Aboriginal groups of an opportunity to challenge the committee’s determination prior to the minster adjudicating. The Aboriginal Cultural Heritage Act 2021 provides a six-month transition period from the time it comes into effect before the 1972 laws it replaces are repealed. That has provided the Cook Government with a small window to bin the new laws and return to the old scheme without having to draft an entirely new Act from the ground up. Crucially, the 1972 laws contain an “ignorance” defence — which means landholders cannot be prosecuted for damaging Aboriginal heritage when they genuinely did not know it was present. Returning to that standard would remove the requirement in the updated laws to complete a “due diligence assessment” — which can include costly surveys — prior to undertaking ground disturbing activities. While that would dramatically ease the burden that has been placed on WA landowners — and farmers in particular — it risks severe backlash from Aboriginal stakeholders who spent years consulting with the Government on the replacement laws. In a statement released on Saturday, Puutu Kunti Kurrama and Pinikura Aboriginal Corporation — whose heritage was destroyed at Juukan Gorge — slammed the Government for its backflip and threatened retaliatory action. “We do not support the old Act’s Section 18 process, which is a permit for cultural heritage destruction,” PKKP director of land and heritage management Dr Jordan Ralph said. “At this point in time, we are considering withdrawing from compliance-driven heritage surveys and negotiations until the State Government can deliver certainty and clarity around the future for all First Nations people.”