WA walks back cultural heritage laws, apologising for landowner ‘confusion’

The law affected properties of 1,100 square metres or larger, and introduced a three-tiered system to determine the level of oversight needed if a landowner was planning on building or working on their land within areas that were deemed to be “culturally significant”.

There were a large array of exempted activities that did not require oversight. Building a home, general maintenance and maintaining existing infrastructure, as well as installing a patio, granny flat, pool, carport, veranda or deck were all exempt.

Farmers working on established paddocks in a way they had previously operated were also exempt.

Yet within weeks of the legislation coming into effect, it became clear that property holders were unsure about whether the new rules applied to them, and if so, what their responsibilities were.

As a result, the Real Estate Institute of Western Australia (REIWA) urged the government to consider passing an exemption for all residential land or increasing the 1,100-square metre threshold, citing the large number of residential properties that are now subject to the law and the potential for property transactions and development to be stymied due to the added bureaucracy.

Industry bodies representing farmers, as well as the state’s local councils, also raised concerns. Now, the law has been repealed, with the Labor government led by Premier Roger Cook stating that the Aboriginal Heritage Act of 1972 would be reinstated, with some small changes.

The amendments to that law, the government said, would take a “common sense approach”.

They include appointing the newly formed Aboriginal Cultural Heritage Council with the task of making recommendations to the minister; giving native title groups the right to appeal section 18 decisions, which is a clause in the 1972 law that allows the Aboriginal affairs minister to approve the destruction of heritage sites; and making it a requirement for the owner to notify the minister of any new information about an Aboriginal site in the case where a section 18 decision has been approved.

The government stated it believes these changes will be sufficient to ensure there’s never a repeat of the Juukan Gorge destruction.

“The Juukan Gorge tragedy occurred because new information about the caves was not disclosed and with our important amendments to the 1972 legislation, we will ensure it can never happen again,” Aboriginal Affairs Minister Tony Buti said.

Moreover, the premier apologised to landowners for the confusion the new legislation had caused, saying: “Our response was wrong, we took it too far, unintentionally causing stress, confusion and division in our community.”

“The complicated regulations, the burden on landowners and the poor rollout of the new laws have been unworkable for all members of our community – and for that, I am sorry,” Mr Cook said.

Meanwhile, REIWA CEO, Cath Hart, welcomed the repeal of the new laws and called the amendments to the 1972 act “a common sense solution for all parties”, noting that the body ultimately supported the safeguarding of the Aboriginal cultural heritage, though disagreeing with some of the new laws.

“The changes announced today will give residential and rural property owners the confidence to develop their property, whether to renovate, extend or subdivide, or add a dam or fences without fear of committing an offence by unknowingly disrupting Aboriginal cultural heritage,” Ms Hart said.

“They won’t need to check if their planned actions are exempt or be required to conduct their own heritage surveys,” she added.

Indigenous groups, however, have aired their frustration at the government’s decision and in particular their ability to participate in charting a path forward.

The traditional owners of Juukan Gorge, represented by the Puutu Kunti Kurrama and Pinikura (PKKP) Aboriginal Corporation, told the ABC the group only received a phone call that lasted approximately five minutes prior to the government announcing the reinstatement of the 1972 laws.

PKKP land and heritage manager Dr Jordan Ralph said that reverting to old laws was not the answer.

“We’re going back to pre-Native Title legislation that was never fit-for-purpose, that benefited industry over Aboriginal heritage and Aboriginal people. So, it is really a backward step,” Dr Ralph said.

Yindjibarndi Aboriginal Corporation chief executive Michael Woodley echoed Dr Ralph’s comments.

“The disappointing part of it is the outside noises from most of the people who’ve been raising concern about it kind of takes us back in terms of our relationship and what we’re trying to build together,” Mr Woodley said.

“So the reconciliation process for First Nations people and non-Indigenous people kind of takes a step back as well.”