WA’s new-look Aboriginal heritage policy and the assessment of sacred sites
When is an Aboriginal sacred site not a sacred site?

BHP Port Hedland: Image by Eugene Regis (Fickr).

In Western Australia, developers have long enjoyed the right under the Aboriginal Heritage Act 1972 to apply for ministerial consent to “disturb” any Aboriginal site in the state. They have also long enjoyed the right to appeal such ministerial decisions, as set out in section 18, even though the Aboriginal custodians or native title holders of the site to be disturbed have no such right.

If this apparent breach of both the Racial Discrimination Act and the Native Title Act seems bad enough, things in WA look set to become significantly worse. On 27 November 2014, the last day of year’s parliamentary sittings, the Barnett government introduced the Aboriginal Heritage Amendment Bill 2014. According to the Yawuru Native Title Holders Aboriginal Corporation, the amendments outlined in the bill “appear to be directed towards simplifying the processes by which persons can gain administrative permission to destroy or damage Aboriginal sites without the free, prior and informed consent of the relevant Aboriginal people and without fear of repercussions”.

On the same day, an Aboriginal heritage test case opened in the WA Supreme Court. Eddie Mabo’s former barrister, Greg McIntyre SC, argued on behalf of Aboriginal custodian Diana Robinson that WA’s Department of Aboriginal Affairs (DAA) had wrongly removed an Aboriginal site at Port Hedland Harbour from the DAA site register. 

The WA government is expected to lose the case, which challenges a contentious definition of “sacred site” under section 5(b) of the Act. According to the DAA’s advice from the State Solicitor’s Office (SSO), there must be evidence of “religious activity” at an Aboriginal sacred site for it to qualify for DAA registration.

Mike Robinson, formerly Specialist Anthropologist on the DAA’s heritage advisory body, the Aboriginal Cultural Material Committee (ACMC), states that “for anyone with any understanding of Aboriginal tradition, this definition of a sacred site simply doesn’t make sense”. A recent WA Law Society submission to the department also argues that this definition is inconsistent with the legislation itself:

The term “sacred” in section 5(b) is not defined in the AHA and there is no justification for the above limitation being placed upon its meaning.

Mike Robinson identifies a clear shift in DAA policy from about 2011, and under the recent DAA administrative changes described, it’s no surprise that WA heritage practitioners have reported a dramatic drop in the number of sites assessed by the ACMC as being sites under the AHA: 80% of sites submitted to DAA in the first half of 2011 were assessed as sites, while only 6% of sites submitted to DAA in the first half of 2014 were assessed as being sites.

This recent shift towards industry-friendly site assessment outcomes has coincided with the appointment of several recent recruits to the DAA executive from industry backgrounds. DAA’s current director of policy and reform, Ian Loftus, came from the Department of Mines and Petroleum, and previously worked as land access manager for a uranium production company, and as policy and public affairs manager for industry peak body the Association of Mining and Exploration Companies (the main industry group driving the AHA amendments process). DAA Deputy Director-General Aaron Rayner (regarded as one of the chief architects and the principal public advocate of the AHA Amendment Bill) was recruited from the Department of State Development to run DAA’s Heritage Branch.

Under the current AHA, a section 18 application for ministerial approval to disturb an Aboriginal site must first be assessed by by DAA’s Aboriginal Cultural Material Committee. Under the committee’s current chairperson, lawyer Gavin Fielding, qualified DAA anthropologists and archaeologists have been excluded from meetings, while the committee’s deliberations have been severely truncated. In May 2012, the ACMC determined 14 highly complex section 18 applications, comprising over 4000 pages, in just 77 minutes.

Mike Robinson eventually quit the ACMC over the contentious SSO definition of a sacred site which is at the heart of the current Robinson v ACMC Supreme Court challenge. He recalls one site coming up in the ACMC where:

there was clear evidence it was a significant dreaming site: Aboriginal people knew the songs for the place, what had happened there mythologically, and regarded it as of such significance that it should be protected. But there was no evidence of ritual activity there, so the committee decided it should not be identified as a site. But I said: “My advice to you as the ACMC anthropologist is that it should be regarded as a site.” And Aaron Rayner said that in his opinion as a non-anthropologist, it couldn’t be a site. And Gavin Fielding said, “Well, I think I’ll agree with Mr Rayner.” So Gavin Fielding accepted the interpretation placed on a sacred site by Mr Rayner, but not my interpretation as the Specialist Anthropologist.

The AHA Amendment Bill – set for debate after parliament resumes today – would not only abolish the ACMC anthropologist position, but also strip the committee of responsibility for site assessment, revesting this function in the DAA’s CEO. “Thus,” says Mike Robinson, “removing any remaining possibility of independent advice without fear or favour.”

This is an edited version of a longer article to be published at aboriginalheritagewa.wordpress.com.

Stephen Bennetts

Dr Stephen Bennetts is a consultant anthropologist, former editor of the Indigenous Law Bulletin, and co-founder of Friends of Australian Rock Art.

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