Voice debate is made more difficult by new land laws

The introduction of Western Australia’s new Aboriginal Cultural Heritage Act could not have come at a worse time for the already difficult task of promoting constitutional change to enshrine an Indigenous voice to parliament. As Labor heavyweights, including Indigenous Australians Minister Linda Burney, descend on WA to argue for the Yes campaign, the popular media is awash with stories about local Indigenous groups asserting assumed rights to block community events or demand a share of funding. The protests are unlikely to be protected by the heritage laws introduced in the wake of Rio Tinto’s destruction of the culturally significant Juukan Gorge rock shelters in May 2020. But the simple message for a concerned public has been that Indigenous groups are divided over who can speak for country and some are willing to frustrate even well-meaning community events such as a volunteer revegetation project or a memorial garden for Queen Elizabeth II.

While WA Premier Roger Cook says those making demands are not entitled to stop the actions, local authorities say there is bureaucratic confusion and stiff penalties for anyone who runs foul of the new laws. Under the new rules, penalties for damaging a cultural heritage site range from $25,000 to $1m for individuals and $250,000 to $10m for corporations, as well as jail time.

According to the WA government website, the laws are designed to “recognise, protect and manage” one of the oldest living cultures in the world. It says the new system provides “opportunities for Aboriginal people to be consulted and make decisions about activities that may impact their cultural heritage”. Residential properties under 1100sq m are exempt from the act and homeowners do not require approval to install a pool, deck or garage on their properties.

People undertaking like-for-like activities, such as farmers working on established paddocks in a way they have been previously, are exempt. But where new works are planned on large properties, landowners are required to check for Aboriginal cultural heritage before starting works. For activities involving low-level ground disturbance, the act establishes a permit system based on due diligence and application to the Aboriginal Cultural Heritage Council. This could include erecting or installing a stock watering point or a yard, amalgamating lots and constructing villa-style housing. A nominal $100 administrative fee will apply for a permit. High level of activity will require a management plan under a scalable system of fixed and variable application fees.

Concerns about the new act feed into the No campaign for the voice that has launched its official pamphlet through the Australian Electoral Commission citing 10 reasons Australians should oppose the plan. The No pamphlet argues a constitutionally enshrined voice to parliament and executive government is legally risky, provides no detail on how it will work, will divide Australians, will fail to help Indigenous communities, and no issue will be beyond its scope. The Yes campaign will argue that constitutional recognition and a voice to parliament are the right things to do. It is hoping a big-spending advertising blitz will be able to turn around a slide in support.

The evidence is clear that support is slipping away for Anthony Albanese’s chosen referendum model for constitutional recognition first followed by legislation on how the voice will operate. The latest Newspoll shows 41 per cent of voters now say they will vote Yes. For the first time, women are more likely than men to vote No. In the regions, the No vote has blown out to 62 per cent, confirming a widening demographic split between city and bush. Recent events in WA are a matter of unfortunate timing. The Heritage laws will need time to be bedded down and properly understood. But they are not the voice and there should be no confusion: voters should make their choice for the referendum based on the facts in the Yes and No cases out now.