Northern WA is also home to one of the largest principally unregulated rivers remaining in Australia. The Martuwarra / Fitzroy River and its catchment support a rich and unique biodiversity of aquatic and terrestrial life with national heritage listed natural and cultural values. Significantly, the Fitzroy region is home to a growing number of vibrant First Nations culturally and environmentally sustainable enterprises.
As an indication of how weak cultural heritage protection has been in Australia, the 1972 Aboriginal Heritage Act AHA (WA) was considered to be comprehensive legislation compared to that of other jurisdictions. The AHA Act emphasised the importance of Aboriginal tradition, culture and heritage to contemporary Aboriginal people rather than being merely matters of archaeological or scientific interest. It also mandated that it was an offence to damage an Aboriginal site, however, parties could apply to use the land in a way that may cause damage and if consent was given that party gained immunity from prosecution.
An amendment took effect in 1980, shortly after a two-year stand-off between the WA government and a First Nations community objecting to drilling for oil on sacred sites where they lived on the vast Noonkanbah station in northern WA. At the time of Noonkanbah, the AHA consent process was the responsibility of the WA Museum Trustees. The Trustees refused consent to the American mining corporation involved but were directed by the government to consent to the impacts.
The 1980 amendment transferred the consent power to the relevant Minister where it has remained to this day. In a paper titled Sorry but not Sorry, John Southalan offers a detailed analysis of the history of the Act from 1972 to the present day. Unfortunately there has been an increasing frequency of conflicts between the extractive industries’ economic development priorities and the Traditional Owners seeking to protect their cultural heritage.
The Aboriginal Cultural Heritage Act 2021
In the eyes of many stakeholders from Traditional Owners, their communities, legal, academic, investment support groups and the United Nations, the passage of the new Aboriginal Cultural Heritage Bill fails to prevent another Juukan Gorge.
WA Senator and Yawuru man, Patrick Dodson has described the new legislation as the tyranny of cultural genocide. Australia endorsed the United Nations Declaration of Rights of Indigenous Peoples (UNDRIP) in 2009. In response to a delegation of First Nations leaders’ request to review the Bill, the UN Committee on Elimination of Racial Discrimination has asked the Australian government to re-appraise the WA Bill in light of relevant articles of UNDRIP.
Notwithstanding the widespread criticism of the now legislated Aboriginal Cultural Heritage Act, the WA government is proceeding with a codesigned implementation process. And despite the post Juukan response progress at the Federal level, it is disconcerting to learn that the Federal government is expressing ambivalence about embracing the recommendations of the Parliamentary report, A Way Forward.
- 1984: The Seamans Inquiry recommended stronger protection for sites of significance and that substantive amendment be made to the AHA. Recommendations were rejected.
- 1985: Aboriginal Land Tenure Bill passed by the Legislative Assembly but defeated in Legislative Council.
- 1990: Ongoing litigation by Aboriginal people led to attempts at a draft Aboriginal Heritage Amendment Bill. Widespread criticism led the government to withdraw the Bill.
- 1991: A Ministerial Council established to deal with ongoing conflict of sites and with a commitment to review the AHA. A draft bill was delayed and did not proceed due to change of government.
- 1992: Aboriginal Heritage Act allowed government to excise a site from the AHA so that development could occur at Mandaroo.
- 1995: Between 1993-1995 further Working Groups were set up to address issues of the AHA. By the end of 1994 over 300 recommendations were tabled some of which were implemented.
- 2011-12: The Avery Review provided advice on reform of AHA as part of wider reforms across government. The reform Bill came before Parliament in 2014 but again lapsed before change of government in 2016.
- 2020: The internationally significant Juukan Gorge was destroyed in May by Rio Tinto.
- 2021: A new Aboriginal Cultural Heritage Bill was passed without amendment in December.
Sites of Concern
To recap on the destruction and ramifications of the globally significant ancient cultural heritage site at Juukan Gorge, see our page here.
This 700km long river, flowing from its origins in the central Kimberley plateau through deep gorges, coursing between flood plains to the sea at King Sound, teems with natural and cultural biodiversity that is of national and global significance.
The Fitzroy Valley is home to five First Nations language groups, including the Bunuba, Gooniyandi, Nyikina, Walmajarri and Wangkatjungka. First Nations peoples, who comprise about 80% of the region’s population, hold Native Title rights over most of the catchment and about 30% of the region’s pastoral lands.
Since the Australian Government released its first White Paper on developing Northern Australia (2015) there has been increasing focus on the economic development of the Martuwarra/Fitzroy region. Key stakeholders who hold a range of contested interests include the Federal and WA governments, Traditional owners, Industry groups (agricultural, pastoral, aquatic and extractive) and Environmental groups. Senior Aboriginal academic, Dr Anne Poelina has said:
We have an obligation globally with climate change and water scarcity to work together to prevent a disaster on this National Heritage Listed Fitzroy River and learn from the lessons of the Murray Darling Basin.
It is reported that the WA government received an historic number of submissions from across Australia to its Water Management in the Fitzroy Catchment Discussion Paper objecting to government proposals for water extraction. A draft report from the WA government on how it plans to respond to immediate stakeholders and the wider Australian community concerned about the future of the Martuwarra Fitzroy is expected soon.
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