The Aboriginal Heritage Act 1972 (WA) protects all Aboriginal heritage sites in the state, whether registered or not. Consent is required for any action that will adversely affect Aboriginal heritage sites. The expert Aboriginal Cultural Material Committee considers applications to disturb heritage and, historically, grants permission in the overwhelming majority of cases.
The Western Australian Government has introduced legislation in response to perceived inadequacies with the current legislation, on the basis that ‘modest’ changes are now required to ensure that Aboriginal heritage can continue to be protected in an efficient and effective way (Collier 2014). The changes are intended to improve the protection of Aboriginal heritage in Western Australia by (Western Australian Government agencies, pers. comm., July 2016):
- enabling a clear pathway for the thousands of unassessed heritage places to be formally assessed and protected where they meet the relevant criteria
- ensuring that Aboriginal people with knowledge of Aboriginal heritage places being assessed under the Act have sufficient opportunity to comment and provide further information
- allowing for engagement of Aboriginal honorary wardens who may assist with on-ground protection of Aboriginal heritage
- improving enforcement provisions and increasing penalties.
However, the Aboriginal Heritage Amendment Bill 2014 proposes a range of changes that appear to reduce both protection and transparency of process.
In Western Australia, developers already have the right to apply for consent to disturb Aboriginal sites and to appeal decisions, whereas the Aboriginal custodians or native title holders have no such appeal right, either under the current Act or through the proposed amendments. The Aboriginal Heritage Amendment Bill appears to simplify the approval process for damage or destruction of Aboriginal sites without free, previous and informed consent of relevant Aboriginal people (Jones 2015).
The Bill moves responsibility for evaluating the significance of Aboriginal heritage places and objects to the Chief Executive Officer of the Department of Aboriginal Affairs, and allows them to issue declarations that no sites exist in certain areas. Currently, the Minister for Aboriginal Affairs makes these decisions.
The proposed amendments also do not address anomalies between the statutory protection and management systems for Aboriginal and non-Aboriginal heritage. Although the penalties for offences will increase, the maximum penalty for an individual illegally disturbing a non-Aboriginal heritage site will be $1 million and 2 years’ imprisonment, but for an Aboriginal site it will be $100,000 and 12 months’ imprisonment.
The proposed changes in the Bill have been controversial, and the minister has announced that consideration of the legislation will be deferred until after the next state election (Kagi 2016).
The changes are proposed in a context where a recent report by independent consultant archaeologists suggests that 3207 registered Aboriginal heritage sites have been removed from the Aboriginal Heritage Register, including 69 mythological sites and 14 ceremonial sites (AHAA 2015, Dortch & Sapienza 2016). One such site is the Collie River, which was originally protected in 1999, but removed from the Aboriginal Heritage Register in 2009. The Beeliargu Wilman tribe believe the river was created by an ancestor being known as the Ngarngungudditj Walgu, or the hairy-faced serpent.
When interviewed by the Australian Broadcasting Corporation in 2015 (Moodie 2015), Noongar man Joe Northover expressed the concerns shown by many traditional owners about the importance of protecting Aboriginal places with strong associative values. Before the Collie River was removed from the Aboriginal Heritage Register, he had been consulted about—and had successfully challenged—several development proposals that affected the site.