Legislation to enact a new Aboriginal Cultural Heritage Act to replace existing law in Western Australia was under consideration when COVID-19 brought the process to a halt. The legislation would replace the 1972 Aboriginal Heritage Act, widely acknowledged as having been watered down to the point where it offers little protection to indigenous sites. After a two-year consultation process, proposed legislation was in the drafting stage, but introduction of a bill in Parliament was put on hold in order to address the impact of the COVID-19 on Western Australia’s indigenous population.

Meanwhile, on May 24, 2020, two 46,000 year-old rock shelters in a remote region of Western Australia were blown up by the mining giant Rio Tinto as it prepared to extend its mining operations under a permit granted in 2013 under Section 18 of the Act to destroy the site for mining purposes. The rock shelters held enormous significance for Western Australia’s indigenous Puutu Kunti Kurrama and Pinikura (PKKP) people. The rock shelters were also highly significant to archeologists (an 8,000-year-old kangaroo bone pick, Australia’s oldest known bone tool, and other artifacts were removed from the site prior to its destruction.) While Rio Tinto acted within the letter of the law, the action sparked international outrage. The company has apologized for its actions, and a Parliamentary inquiry is underway, with a report to be delivered by September 30. (For a discussion of the Rio Tinto actions and their aftermath, as well as the proposed new legislation, see the website of The Art Newspaper and its excellent podcast. 

These recent tragic events underscore the weakness of existing legal protection for places of significance to Australia’s indigenous population. Not one Section 18 application has ever been refused:

Section 18 approvals have no expiration date, cannot be challenged by indigenous land owners, are not affected by the subsequent discovery that sites are of special heritage significance, and cannot be revoked by the minister for aboriginal affairs…

The Art Newspaper

Prior to the formulation of the new legislation an extensive consultation process with all stakeholders took place to examine the problems in the existing system and consider ideas for modernization and improvement. During the first phase of the consultation process, representatives of the indigenous population stressed the narrow, site-specific focus of the existing law and its failure to address cultural knowledge. Relevant excerpts from the first phase of the consultation process include the following:

The current Act’s narrow focus on artefacts and sites is badly out of step with the last 30 years’ development in our understanding and management of heritage. Globally, heritage is moving to a more dynamic and values-based understanding and management of both ‘tangible heritage’ (e.g. artefacts and sites) and ‘intangible’ heritage (e.g. cultural landscapes, intellectual property, etc).

University of Western Australia

Legislation needs to make it an offence to publicise on the Internet any culturally confidential images.

My Heritage, My Voice — Warburton

There are by and large no real attempts to address intellectual property or repatriation in the current Heritage Act and again, it is a relic of its time…the Act…should include protections for the stories, songs and rituals that frame the relevance of any such objects.

Terra Rosa Heritage Consultants

Inherent in the discussion is the tricky question of how to define the physical sites to be protected. Rather than discrete dots on a map, the new law would focus on broader cultural landscapes. How to draw boundaries in a way that balances this premise with the need for clear rules for industry stakeholders will be a challenge:

The focus on the definition of a Site obscures the fact that any such definition, which requires finite boundaries to be drawn around places, is fundamentally inconsistent with Aboriginal conceptions of country, which are holistic and in which acknowledge the connections between places, animals and the living environment within a broader landscape.

Paul Sheiner, Director, Roe Legal Services, Id.

The proposed legislation will include coverage for ancestral remains, places that are cultural landscapes and place-based intangible heritage but will exclude coverage for purely intellectual property rights (such as, for example, the use of indigenous designs in a painting). The proposed law will:

[a]dopt a definition of ‘place’ that aligns with the internationally recognised ICOMOS Burra Charter definition: “Place means a geographically defined area. It may include elements, objects, spaces and views. Place may have tangible and intangible dimensions.”

Department of Planning, Lands and Heritage, Government of Western Australia, Review of the Aboriginal Heritage Act of 1972, March 2019

Australia’s Burra Charter, initially adopted in 1979 and periodically updated, most recently in 2013, provides standards for the management of cultural heritage in Australia. Guidance issued in connection with the Charter provides as follows:

The Burra Charter definition of ‘place’ is broad and encompasses Indigenous places of cultural significance.

‘Place’ includes locations that embody spiritual value (such as Dreaming places, sacred landscapes, and stone arrangements), social and historical value (such as massacre sites), as well as scientific value (such as archaeological sites). In fact, one place may be all of these things or may embody all of these values at the same time.

In some cases the find-spot of a single artefact may constitute a ‘place’. Equally, a suite of related locations may together comprise a single ‘place’, such as the many individual elements that make up a Songline. These more complex places are sometimes called a cultural landscape or cultural route.

Australia International Council on Monuments and Sites, The Burra Charter and Indigenous Cultural Heritage Management

Stay tuned for updates on the efforts in Western Australia to prevent the destruction of its Aboriginal heritage. And see our prior blog on the general lack of legal protection for indigenous Australian art.