Saylor, David --- "Aboriginal Cultural Heritage Protection in Western Australia: the Urgent Need for Protection" [1995] AboriginalLawB 51; (1995) 3(77) Aboriginal Law Bulletin 9

Aboriginal Cultural Heritage Protection in Western Australia:
The Urgent Need for Protection

by David Saylor

As a consequence of the invasion of Australia, much Aboriginal and Torres Strait Islander cultural heritage has been lost or diminished. Until the Racial Discrimination Act 1975 (Cth) and Mabo [No. 2] (Mabo v Queensland [No. 2][1992] HCA 23; , (1992) 175 CLR 1), the common law had afforded little protection or recognition of Aboriginal rights. It is well known that Aboriginal culture has many aspects which are culturally distinct from non-Aboriginal society, for example, Dreamtime legends, languages, and sacred and spiritual sites. As they form the very fabric of Aboriginal identity, they must be considered to require proper protection.

Legislative Response to Aboriginal Heritage Protection

In Western Australia, the legislative response to Aboriginal heritage protection has created a dilemma as to whose interests primarily are to be protected when decisions are made as to whether to preserve a site: community interests or Aboriginal interests?

The purpose of the Aboriginal Heritage Act 1972 (WA) (`the Act') is stated as being both to protect Aboriginal remains, relics and sites from undue interference, and to recognise the legitimate pursuit of Aboriginal customs and traditions (ss7-9). It is an offence for a person to excavate, destroy, damage or alter any Aboriginal site (s17). An owner of land must inform the Trustees of the Western Australian Museum (`the Trustees') if they wish to use land in a manner contrary to s17 of the Act (s18(2)). The Trustees are required to evaluate and form an opinion on the matter and submit it to the Minister (s18(2)). The Minister must consider the recommendations of the Trustees, and can either consent or decline consent to the proposed use of the land (s18(3)). It is possible for an aggrieved land holder to appeal to the Supreme Court, and the Judge may either confirm the decision of the Minister, or quash the decision and substitute it with his or her own decision (ss18(3) and(5)). Concerned Aboriginal people, however, have no statutory rights of appeal.

Aboriginal sites that are on Aboriginal land can be protected by rights of proprietorship. However, a large proportion of Western Australian land is considered vacant Crown land. Even where proprietary interests exist, they may be insufficient when resource developers obtain prospecting and exploration permits pursuant to the Mining Act 1978 (WA) or the Petroleum Act 1967 (WA). Therefore, Aboriginal heritage protection claims generally fall directly within the operation of the Aboriginal Heritage Act 1972 or the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). It has been stated, however, that the Commonwealth Act is only to operate as a `safety net' where State legislation is inadequate to protect Aboriginal heritage: Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409 (see French J at 446-451). The Commonwealth Act is not intended to `cover the field', or exclude or limit the operation of State or Territory laws; rather it operates concurrent with State legislation (see s7). Therefore, the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs will only use the Commonwealth Act to protect sites as a last resort.

Aboriginal Heritage Act 1972 not for Aboriginal People

The lack of legally recognised special status for an aggrieved Aboriginal heritage claimant in Western Australia v Bropho ((1991) 5 WAR 75) manifested the inadequacies of the Act in the protection of sites of special significance to WA Aboriginal groups. In that case, Anderson J held, among other things, that the provisions of the Act were passed for the benefit of the whole community with a view to preservation of objects and places that are significant to Aboriginal cultural life (at 86). Consequently, a majority of the Supreme Court (2:1, Malcolm CJ dissenting) held that the Act did not confer on Mr Bropho a special interest. His right to a hearing was thus denied.

The special interest which attracts a right to be heard has comparisons with the special status necessary for anyone to bring a case in court. Anderson J distinguished Western Australia v Bropho from the High Court decision on standing in Onus & Anor v Alcoa of Australia Ltd ((1981) [1981] HCA 50; 36 ALR 425). In that case, the High Court held the purpose of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) is to preserve Aboriginal relics and places for the public at large, and not just Aboriginal people. Nevertheless, the Aboriginal plaintiffs in Onus v Alcoa were accorded standing because of their special interest in the site based on their cultural and traditional links to that land. Anderson J denied standing for Mr Bropho on the grounds that he did not claim any direct physical association with the site; and as his interests were spiritual, his concerns to protect the site from further desecration were only subjective (at 90). However, Malcolm CJ, following the decision of Gibbs CJ in Onus v Alcoa, would have allowed Mr Bropho standing because of his special interest in the site (at 78-79). His Honour stated that Mr Bropho `would be more particularly affected by the proposed development than ordinary members of the public' (at 79).

Tragic incongruities can be seen between the Western Australia v Bropho decision and Re French (Unreported, 1994, Supreme Court of Western Australia No. 940033). In that case, Ipp J considered the representative function of a Residents' Association, and accorded the Association standing to bring a case, as some land over which mining leases were granted fell within the Association's area of interest. Thus, whilst an association may gain standing on the grounds that proposed resource development affects that association's interests in land, Aboriginal plaintiffs are characterised as lacking any special interest in Aboriginal heritage because the Aboriginal Heritage Act is said to have been enacted for the benefit of the whole community!

It is thus hardly surprising the Act has proven ineffective at protecting sites of traditional significance to Aboriginal people. For example, work on the sites located at the Argyle Diamond mine and Noonkanbah in the Kimberley region was allowed to proceed, despite objections raised by the Aboriginal people there. It is situations such as these that cause Aboriginal people to have little or no trust in the Act, and thus seek forms of heritage protection which will accommodate their traditional beliefs. As has been noted:

`The government of the day can decide in the interests of the broader community what Aboriginal sites should be destroyed or damaged, no matter how sacred or important or special their significance to Aboriginal people may be' (Western Australian Aboriginal Land Inquiry, 1984, para 8.16).

Heritage Protection Entrusted to Aboriginal People

The Trustees of the Western Australian Museum have responsibility for the administration of the Act (s11(1)). In carrying out their duties, they are required, but not bound, to pay attention to the recommendations of the Aboriginal Cultural Materials Committee (`the Committee'). It is through the Committee that Aboriginal representation in matters related to decision made under the Act is attempted to be achieved. The option for the Trustees to accept or reject the Committee's recommendations under s11(1) of the Act may be contrasted with s11(2), which requires the Trustees to give effect to any directions made by the Minister as to the exercise of any function under the Act For example, the Minister can direct Trustees not to consider an area for protection so that a resource development company can sink a well bore pursuant to the Petroleum Act 1967. However, Aboriginal people are the mere `informers' of any sites which needs protection, and do not have any substantial influence or control over how a site should be protected (see Western Australian Aboriginal Land Inquiry, para 8.23). The small number of Aboriginal members on the Committee cannot properly reflect the heritage concerns of the many different Aboriginal language groups throughout WA. In fact, it has been recorded that the present Aboriginal chairman of the Committee has given opinions and recommendations contrary to the wishes of the Aboriginal community at Noonkanbah (see Noonkanbah; Whose Land, Whose Law, by Stephen Hawke and Michael Gallagher, Fremantle Arts Centre, Fremantle, 1989) and the Swan Valley Fringe Dwellers (see Always Was, Always Will Be: The Sacred Grounds of the Waugal, Kings Park, Perth WA by Martha Ansara, M. Ansara Publishers, Balmain, Sydney 1991), when those groups were applying for protection of some of their sacred sites.

In contrast, the Australian Conservation Foundation (in Competing Interests, by Susan Woenne-Greene et al, 1994, chapter 6) has reported that Aboriginal people in WA are consistently demanding that legislation be enacted which acknowledges their rights to own, manage and control all aspects of Aboriginal cultural heritage. Furthermore, the Royal Commission Into Aboriginal Deaths in Custody recommended that Aboriginal people and appropriate Aboriginal organisations and communities in WA be able to negotiate with National Park authorities to establish mechanisms enabling Aboriginal custodians to be in control of, and have protection of and access to, sites of significance to them (Recommendation 315(j)).

Cultural Heritage Agreements

There have been occasions where Aboriginal sites in WA have been protected by recourse to mutually acceptable agreements between parties. The Ngaanyatjarra people and an oil company have established a site protection agreement, the effect of which is to guide the company away from the more sacred sites (Western Australian Aboriginal Land Inquiry paras 8.25-8.27). This example highlights the inherent dangers of control of sacred sites by outside organisations such as the Western Australian Museum. The oil company was originally given approval by the Museum to do a seismic exploration, and was permitted to proceed without reference to the affected Aboriginal people. The sacred sites were ultimately protected not by the Aboriginal Heritage Act, but by recourse to an agreement between the parties.

In order to meet the self-determination aspirations of Aboriginal groups in WA, the Act ought to be amended so as to confer upon Aboriginal groups, resource developers, persons who have leasehold or freehold interests in land, and other relevant parties, the power to negotiate mutually acceptable agreements, with the purpose of identifying and protecting sacred sites and Aboriginal cultural heritage. Such agreements should be conclusive and have the force of a contract. Furthermore, the role of the Aboriginal Cultural Materials Committee, with respect to protection recommendations and opinions on traditional sacred sites significant to a particular Aboriginal group, should be abolished. Concerned Aboriginal groups should be able to negotiate and consult with the other relevant parties directly.

Native Title Act As a Model

The Native Title Act 1993 (Cth) (`the NTA') presents itself as an avenue for Aboriginal cultural heritage protection. The Preamble to the Act states that Governments should facilitate negotiation on a regional basis between parties in relation to, among other things, claims to land. The main objects of the Act are: (i) recognition and protection of native title; (ii) establishing ways in which future dealings affecting native title land may proceed; (iii) establishing mechanisms for determination of native title; and (iv) validation of past acts invalidated through the existence of native title (see s3).

The NTA allows native title holders to surrender native title lands to the Government on agreed conditions (s21). The provisions under Division 3 Subdivision B of the NTA confer rights of negotiation between Government parties, registered native title parties, and other relevant groups, concerning `permissible future acts'. These acts can include creation of a right to mine (pursuant to any lease); extension or variation of a right to mine in an area; compulsory acquisition of native title rights with the intent of conferring these rights on a non-Government party; and any other acts approved by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs (s26(2)). The Minister also has a discretion to exclude certain activities (s26(3)). These provisions do not contain a power of veto or the right to exclude any permissible future acts of a Government. The object is for the relevant parties to agree to the performance of an act which may, if necessary, be subject to certain conditions (s31(l)).

If a satisfactory agreement cannot be reached between the parties, and the future act is the proposed exercise of a prospecting or exploration license, a negotiation party may apply to the relevant arbitral body (as defined in s27) within 4 months of a Government party giving notice of its intention to do a permissable future act (s35). Section 39 sets out a number of factors which the arbitral body must take into account when making a determination. For the purposes of cultural heritage protection these include: the way of life, culture and traditions of the native title parties; freedom of access to carry out rites, ceremonies or activities of cultural significance that are in accordance with Indigenous traditions; and any area or site of particular significance to native title parties in accordance with their traditions. However, the arbitral body must also assess the economic or other significance of the proposed act to Australia, the State or Territory.

Once an agreement or determination has been made it has contractual effect (s41(l)), and any breach of its terms and conditions by any party leads to contractual remedies. A Government future act can only be expedited if the act does not interfere with a community which has native title rights; interfere with traditional sites of significance; or involves a major disturbance to land or water (s237).

The NTA has put a halt to governments' continued dispossession of Indigenous people from their land based on the fallacy that such land is `vacant Crown land'. Governments can continue to make grants over native title land only if those grants can also be granted over freehold title. As Prime Minister Keating explained in his second reading of the Native Title Bill:

`A government may not make a freehold or leasehold grant to somebody else over your or my freehold. If your title is to be extinguished, a government must acquire it only for the purposes set down in compulsory acquisition legislation, and you or I must be given protections involved (House of Representatives Parliamentary Debates, Weekly Hansard, 16 November 1993, page 2880).

The NTA ensures that native title holders and claimants are parties in the negotiation process, and are entitled to put forward such terms and conditions which may, among other things, protect Aboriginal culture, and ensure access to and protection of traditional sacred sites. Thus, these provisions have the potential to create a compromise between resource development and protection of Aboriginal cultural heritage by allowing mutually acceptable agreements between parties.

Reform

The unsatisfactory Aboriginal Heritage Act 1927 (WA) should be repealed or amended and replaced by provisions that create an avenue for amicable resolution of heritage disputes between Aboriginal groups and other parties. Reform provisions should not merely `take into account' the wishes of Aboriginal groups, but rather seek actively to facilitate their wishes, through allowing them to negotiate agreements with and through parties which fully recognise the significance to them of sacred sites and cultural heritage. Under the present Act, resource developers who wish to exploit land may have to consult with the Registrar of Aboriginal Sites, who is appointed under s37(1) of the Act. This person in turn consults with the relevant Aboriginal group. The Registrar then advises the Aboriginal Cultural Materials Committee and the Trustees, who advise the Minister. The Registrar then advises the resource developers of decisions. It is suggested that a more appropriate and effective result can be achieved by conferring upon Aboriginal groups the right to negotiate agreements themselves, without unnecessary bureaucratic intervention.

As noted in the Western Australian Aboriginal Land Inquiry (para 8.28), the administrative operations of the Act derogate from the rights ownership of a site by local Aboriginal groups. The fact that the relevant administrative body is based in Perth, and consults, rather than negotiates, with affected groups, further highlights this proposition. A wide consultation process may be appropriate for sites that are to be protected for the community at large, but it may be inappropriate for sites that are of traditional or customary significance to a particular Aboriginal group (for example, sites important specifically to men or to women). It was stated in the Western Australia Land Inquiry that:

`An organisation which is primarily concerned with the recording of history and culture for the broader community and which is staffed by anthropologists and archaeologists centralised in Perth, controlled by Trustees and ultimately controlled by the Minister does not ... meet reasonable Aboriginal aspirations' (para 8.29).

The Royal Commission into Aboriginal Deaths in Custody recommended that governments negotiate with Aboriginal communities and organisations to determine procedures which will ensure self-determination is applied in the design and implementation of policies affecting Aboriginal people (Recommendation 188). The United Nations Working Group on Indigenous Populations has also called for Indigenous peoples to fully participate in legislation which affects them, and has declared that the protection and ownership of Indigenous cultural heritage rest with the Indigenous inhabitants: United Nations (Report of the Working Group on Indigenous Populations on its Eleventh Session, 1993, Articles 13 and 20). Henrietta Fourmile has called for a national inquiry into all aspects of Aboriginal cultural heritage, and believes that any formulation of Aboriginal heritage policy should be based on Aboriginal needs (`The Need For An Independent National Inquiry Into State Collections of Aboriginal and Torres Strait Islander Cultural Heritage', Vol 2, 56 Aboriginal Law Bulletin 3).

Conclusion

The end of paternalistic and patronising processes of outside bodies controlling Aboriginal cultural heritage is long overdue. Factors such as dispossession of land and the assimilationist policies of the past have resulted in the physical separation of Aboriginal people from their culture. Legislative response to and administrative control over Aboriginal heritage protection has established Governments and their agencies as the managers and definers of, and in some cases the owners of, Aboriginal cultural heritage, a process which has resulted in further separation. Conferring on Aboriginal people control and protection of their own heritage will allow them to enjoy their basic human rights, and to retain their Indigenous identity and traditional lifestyles.