27th May 2022

To Whom It May Concern

RE: Submission to the Department of Planning Lands and Heritage on the co-design of regulations for the Aboriginal Cultural Heritage Act 2021.

Thank you for inviting representatives from the Anthropological Society of Western Australia (ASWA) to attend a workshop on the co-design of regulations for the Aboriginal Cultural Heritage Act 2021 (the Act) on 10th and 11th May 2022. ASWA has previously provided feedback on the development of the Act through meetings, workshops and submissions to the Department of Planning Lands and Heritage (DPLH). A chief concern we held as the Act developed was around the establishment and maintenance of an outsourced, Aboriginal community-based, heritage management model – a Local Area Cultural Heritage Supplier (LACHS). We had anticipated these concerns being addressed in the regulations. However, having attended the abovementioned workshop, we are concerned that this will not be the case.

Our submission first draws out our concerns around the LACHS, with a recommendation for sufficient resourcing to ensure that the regulations will be properly administered through them. It then goes on to address each of the Fact Sheets, which were presented at the workshop, in turn.

Local Area Cultural Heritage Supplier (LACHS)

A LACHS will be an ORIC-established Aboriginal corporation that will function like a heritage management provider and Aboriginal Cultural Materials Committee (ACMC), as a ‘one-stop shop’. It will report to either the Prescribed Body Corporate, where one exists, a Native Title Representative Body, where one exists, or some other native title registered claim party representing Knowledge Holders, where one exists. Through LACHS, the government is essentially devolving its risk and responsibility to Traditional Owners, only acting as an arbitrator at times of dispute. Importantly, in no instance does the LACHS report directly to, or work directly for, a proponent.

The LACHS model will require substantial seed funding to establish. This will need to be well in excess of the $10m currently set aside with hypothecated royalties suggested as the best option, possibly in the vicinity of $100s of millions. It will also require individualised economic modelling based on chosen business type and size; geography and remoteness; land administration size; number of active Proponents and type of activity; set up of PBC or NTRB and whether the LACHS elects to:

1. a)  Operate as a For-Profit business, or

2. b)  Act as a Not-for-Profit institution (but not to become a burden on the PBC) or,

3. c)  Begin as a Not-for-Profit then transition to For Profit model, with business support.

Ongoing funding based on yearly economic modelling will be required and will need to be based upon the LACHS economic framework and projections.

This process is largely a fiscal and socio-cultural experiment taking place in an expansive, resource-rich, geographically diverse state, with a large number of native title parties, vast time-depth of tangible and intangible heritage and competing land interests. Commonwealth

Native Title Agreements and Aboriginal people’s cultural obligations under local customary Law will at times over-ride the framework of this complex Act.

In Western Australia, where the interests of mining companies have, for the most, been prioritised over Aboriginal cultural heritage and environments for more than 50 years, it is hard to envisage how perceptions and expectations among Western Australians can shift. We must start from the premise that Aboriginal Cultural Heritage (ACH) exists everywhere until proven otherwise. This reflects the sentiments of a Kimberley PBC who, at the co-design workshop, shared their focus on establishing tourism ‘Go Zones’ in amongst the ‘No-Go Zones’.

Bottlenecks and time pressures for turnaround on individual jobs will only be overcome by highly trained personnel, excellent technology, transparent contact and reporting procedures, good communications systems, access to a steady and professional pool of anthropologists and archaeologists and, lastly, good relationships built on trust. Apart from trust, which is goodwill dependant, these other prerequisites are all resource (finances) dependant.

Fact Sheets

Fact Sheet 1: Activity Categories

Of significant concern to ASWA are the Activity Categories. These are pre-determined according to the work proposed. Yet there are many ways of causing harm that cannot be determined from a given Activity Category. For example, women being in men’s Law sites and vice versa. Traditional Owners should decide what will harm ACH, the nature and extent of that harm and how it should be avoided, reduced or mitigated (if it can be).

The responsibilities for LACHS, as the first point of contact in assessing Activity Categories are immense in a landscape where footsteps may be more than enough to constitute harm (e.g. Depuch Island, north east of Dampier). Moreover, the harm caused by an activity in one place may not be the same as the harm caused in another. Even at the same place, the harm caused to subterranean water, for example, may be quite different to the harm caused to a Dreaming Site and these dynamics may change over time.

Fact Sheet 2: ACH Management Code

The Western Australian landscape encompasses Aboriginal sites that are commonly understood in traditional customary law as linked. Hence the task of addressing where and how particular locations can be managed in the context of proposed developments requires awareness that the breadth of cultural significance can extend across substantial areas. It must be managed with a thorough appreciation of its values, from the past, present and future, in line with customary Law; only Traditional Owners can know this.

Fact Sheet 3: Consultation Guidelines

ASWA believes that consultation with LACHS should be required for all Activity Categories.

There must be written records and logging of contacts and agreements. Existing and future heritage agreements that enshrine FPIC must have a certain base level of compliance with the Act. We recognise that this may require amendments and registration of amendments. Sufficient resourcing of LACHS is clearly necessary for effective consultation.

Fact Sheet 4: Knowledge Holder Guidelines

ASWA considers this to be a matter of concern exclusively for Traditional Owners.

Fact Sheet 5: ACH Management Plan Templates

Effective ACHMPs will require significant LACHS involvement and oversight, placing Traditional Owners and Knowledge Holders, front and center. Triggers for an ACHMP should go beyond ground disturbance to include other ways of harming heritage such as loss of access to Country, pollution, and activities which cause spiritual harm. This may require the development of minimum requirements for each Country and regular review and revision to integrate new research findings, perspectives and knowledge.

Fact Sheet 6: Prescribed Periods for ACH Permits and ACH Management Plans

Sorry Business, cultural activities, Law, family obligations and weather are just some of the considerations which must be taken into account in establishing timeframes for responding to proposals.

Fact Sheet 7: LACHS Fees Guidelines

ASWA concurs that all LACHS activities should have a fee attached, based on pro-rata costing (sliding scale) dependent upon development expenditure. LACHS should have the ability to set their own market-related fees and sliders with suggested guidelines from DPLH. Economies of scale must be recognised in this process.

Independent fees agreements between for profit LACHS, proponents and PBCs/NTRBs are Commercial in Confidence Agreements and non-disclosure to the ACHC may be enshrined. If fees are disputed, mediation could be provided by the ACHC.

The monetisation of heritage sites is not something that should be advocated. However, the reputational cost of not prioritising Aboriginal heritage in high-risk environments should be represented as a visual matrix available to all proponents.

Fact sheet 8: State Significance Guidelines protecting Aboriginal Cultural Heritage of State significance

ASWA asserts that a final decision on the protection of ACH of State Significance should not fall to the Minister for Aboriginal Affairs. The Minister cannot know the full implications of protecting (or not protecting) heritage now and into the future.

Fact Sheet 9: Protected Area Order Guidelines

Traditional Owners have stated repeatedly that waterways are sacred sites, hence ASWA is of the view that rivers, creeks and waterways should be automatically reinstated as Protected Areas.

Intellectual property rights are not negotiable – Aboriginal Intellectual Property falls under federal legislation protection. Collective Indigenous property rights are more adequately captured by the UN Declaration on the Rights of Indigenous Peoples. Article 26 (2) and Article 31 (1), in turn, state:

• Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

• Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. (2) In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

In the event of a dispute over an area identified by Traditional Owners as holding heritage value, the onus to demonstrate that an area does not warrant cultural heritage protection should be on the proponent.

Fact Sheet 10: Substantial Commencement and existing S.18

‘Substantial Commencement’ in the Act refers to demonstrating the commencement of the purpose of the application and not the destruction of the site. As such, ASWA maintains that LACHS should assess whether a proposed project is substantially commenced after 5 years, much in the way the Environmental Protection Authority (EPA) does under the EP Act. Substantial commencement may be based upon percentage of land disturbance caused by the project. Over time, values may have shifted and there may be new sites endangered or new information come to light. There needs to be a mechanism to stop the site disturbance and review of conditions and compliance should be written into an ACHMP. Section18 reassessment should be required if the site is not substantially impacted.

We appreciate the opportunity to raise the above matters, many of which could be addressed by sufficiently resourcing the LACHS.

Yours sincerely,

Dirima Cuthbert

President

Roina Williams

Secretary