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Why did WA reverse the Aboriginal Heritage Act decision?

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On August 8, the Western Australian Government announced that it would be restoring the Aboriginal Heritage Act 1972. But what is behind that decision?

It all began in May 2020, when Rio Tinto, searching for iron ore, blasted rock shelters at Juukan Gorge, despite traditional owners of the land warning the major miner of the site’s significance. Rio Tinto received ministerial consent for the blast in 2013.

Since the incident, Rio Tinto has aimed to increase transparency around its approach to cultural heritage protection and a Juukan Gorge Legacy Foundation was created where Rio Tinto would provide financial support to the foundation to progress major cultural and social projects.

In July 2023, the new Aboriginal Cultural Heritage legislation came into effect, in an effort to prevent this from happening again. But according to industry leaders, farmers and community members, the new legislation was confusing and complicated.

Under the legislation, WA landowners would be required to check if cultural heritage sites were present on the land before undertaking anything which may compromise the sites.

Now, following public workshops, education sessions, and consultation with key stakeholders, the Western Australian Government has made the decision to revert back to the original 1972 Aboriginal Heritage Act, with some key amendments.

The new amendments to the restored legislation include:

  • The newly formed Aboriginal Cultural Heritage Council taking on the tole of the committee that was established under the 1972 Act to make ministerial recommendations
  • Proponents and Native Title parties will have the same right of review for Section 18 decisions, with clear timelines and an ability for the Premier to call-in a decision of ‘State significance’, to act in the interests of all Western Australians; and
  • When a Section 18 has been approved, making it a requirement for the owner to notify the Minister of any new information about an Aboriginal site – an important reform to help prevent another Juukan Gorge.

Section 18 refers to the part of the Act stating the minister must provide approval for every action undertaken at the site.

“The Juukan Gorge tragedy was a global embarrassment, but our response was wrong, we took it too far, unintentionally causing stress, confusion and division in our community,” Premier Roger Cook said.

“I’ve been the Premier for eight weeks now, and it’s obvious that we need to make changes, restore confidence in our cultural heritage system and get the balance right.

“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.

“The original intent of the legislative change nearly two years ago, was to prevent another Juukan Gorge – and my Government will deliver on that commitment.”

Aboriginal Affairs Minister Tony Buti said the Section 18 process will be strengthened in the new amendments.

“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,” Buti said.

“The Section 18 process will be strengthened – with these changes mainly impacting miners and Government, whose work most impacts cultural heritage.

“Australian Aboriginal culture is one of the world’s oldest continuing cultures dating back at least 60,000 years – cultural heritage is central to the health and vitality of Aboriginal communities – and these amendments to our existing laws will protect it forever.”

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