Cultural Heritage in WA

[Image: Martuwarra / Fitzroy River in WA's Kimberley region]

Western Australia (WA) is home to some of the oldest sites of human existence on earth and is also home to some of the world’s richest mineral deposits. Geographically the largest Australian state it is sparsely populated with 2.8 million citizens (one person per square km).  Thirteen percent (13%) of Australia’s First Nations citizens live in WA while only comprising 4% of the WA population

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. 

Background

As an indication of how weak cultural heritage protection has been in Australia, WA’s 1972 Aboriginal Heritage Act AHA (WA) was considered to be comprehensive legislation compared to that of other jurisdictions. The AHA Act emphasized 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 offense 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. Towards the end of the drafting process, CEO of the National Native Title Council, Jamie Lowe claims:

The draft bill will not prevent another Juukan… protecting cultural heritage and having a thriving mining sector can… co-exist; the best way forward… is to withdraw the bill in its entirety and commence mediation with the state’s TO’s to co-design a best practice heritage reform.     

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.

Timeline

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 2021. (Source)

Sites of Concern

To recap on the destruction and ramifications of the globally significant ancient cultural heritage site at Juukan Gorge, readers are directed to have a look at our page on Cultural Heritage Protection campaigning.

Martuwarra/Fitzroy River 

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 people, 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. 

Elsewhere 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. 

Take Action 

Initiatives for cultural heritage protection in WA – join up, sign petitions, donate, volunteer, write letters to/ visit local MPs as directed.

Inaugural Indigenous Water Forum [Webinar–count: 27mins]  

TEDX Talk Perth, Wake up the Snake! Collective Wisdom brings nature back to balance

Voices of the River – a series of 10 short videos profiles 10 Traditional Owners fighting to protect one of the last intact rivers in the world.   

Environs Kimberley, Saving the nature of the Kimberley

Don’t let the Fitzroy River become the next Murray Darling

Further Reading 

Our North Our Future: White Paper on Developing Northern Australia (2015) 

Fitzroy Declaration (2016) 

Kimberley traditional Owners establish Martuwarra Fitzroy River Council (2018) 

The Science Statement (2018) 

Aboriginal Enterprise could hold the key to Fitzroy River Future (2019) 

Submission to Productivity Commission Inquiry on Water Reform by the Australian National University’s Water Justice Hub (2020) 

Managing Water in the Fitzroy River Catchment, Discussion Paper for stakeholders (2020) 

Environmental Protection Biodiversity Conservation Act (2020) (EPBCA)

CSIRO Reports on the Fitzroy Catchment 2021 View video 

Submission Responses to WA Managing Water in the Fitzroy River Catchment Discussion Paper for stakeholders (2021)  

ANTaR Submission: Protecting the Fitzroy River May 2021 

Future scenarios for the Fitzroy River catchment: summary of key findings relevant to the Western Australia Government Discussion Paper (2021) 

Australia ICOMOS Letter to WA Premier: Urgent Request to withdraw the Aboriginal Cultural Heritage Bill (2021)

Learning together for and with the Martuwarra Fitzroy (2021)– this paper investigates the conditions under which knowledge co-production can lead to improved Indigenous adaptive environmental planning and management among remote land-attached Indigenous peoples through a case study with ten Traditional Owner groups in the Martuwarra (Fitzroy River) Catchment in Western Australia’s Kimberley region. 

Sorry, not sorry: the operation of WA’s Aboriginal Heritage Act (2021)

Title Fight, How the Jindjibarndi people battled and defeated a $40 Billion Mining Giant by Paul Cleary

See Also:

Support ANTaR's campaign work on Cultural Heritage Protection, share this page with your networks and make a donation today.

Issue: