Albanese urged to protect Indigenous heritage after Western Australia scraps laws

Western Australia's Indigenous leaders are demanding Anthony Albanese intervene to give stronger protections to their sacred sites.

Protesters rally outside Rio Tinto’s office in Perth int he wake of the Juukan Gorge caves destruction in the Pilbara.

Western Australia’s Indigenous leaders are demanding Anthony Albanese intervene and give stronger protections to their ­sacred sites, as they say the state Labor government has “betrayed them” with its sudden decision to scrap controversial heritage laws.

As support for an Indigenous voice to parliament plummets in the west and the Yes campaign hails the mooted removal of the WA Aboriginal Cultural Heritage Act as the right step, the state’s leading Aboriginal advocates and native title lawyers say the reforms were “wrongly conflated” with the referendum and governments supporting a voice had failed to listen to them.

The Australian understands WA Aboriginal Affairs Minister Tony Buti told top stakeholders on Friday the government intended to scrap the existing WA Aboriginal cultural heritage laws and reinstate the 1972 laws they replaced, though with some amendments.

The Coalition on Friday said it was clear WA Labor realised the laws were turning West Australians against the voice, with one senior Liberal calling on Premier Roger Cook to sack Mr Buti.

While the Prime Minister and members of his ministry refused to comment on the WA government's move to scrap the heritage laws – due to be rubber-stamped at a state cabinet meeting on Monday – WA activists said the federal government had to use its powers to step in.

Both Labor and pro-voice ­activists have tried over the past month to separate the referendum from the growing controversies over heritage laws and Aboriginal treaties.

On Sunday, Mr Albanese told The Australian voters had nothing to fear from the second part of the Uluru Statement from the Heart – a proposed Makarrata Commission that would lead agreement-making and is referred to as treaty for short – as any outcomes would be mutual and not imposed.

“The very word Makarrata is something that no one should have any fear over because by definition, it’s about consensus and working together, and that is something that we need to do as a nation,” he said.

National Native Title Council chair Kado Muir said the state government has caused “uncertainty … confusion and fear” and he would now look to the federal government for a stronger cultural heritage regime.

While critical of the 2021 legislation, implemented within 18 months of Rio Tinto’s destruction of Juukan Gorge, Mr Muir said he was concerned there was now a situation “where cultural heritage in Western Australia will not be protected”.

“This has all been implemented on an ad hoc basis and with kneejerk reactions,” he said.

“What this demonstrates is a very clear signal that we need more national standards and a national approach to cultural heritage protection in this ­country.

“It seems the government has lost control of the ability to protect cultural heritage in Western Australia and so our next resort is to go to the federal government.”

The new WA laws were to apply to properties of more than 1100sqm, and would introduce a three-tiered system imposing obligations on landholders. Farming groups had become increasingly concerned with the application of the laws, and a protest was planned to take place outside state parliament on Tuesday.

Leading Aboriginal heritage lawyer Greg McIntyre, who prosecuted the Mabo case in the High Court, said the laws had not been “working in the way which is compatible with good governance”, and he urged the Albanese government to use its powers under the federal Heritage Act to fill the gap left by “ineffective” state legislation.

“The Aboriginal and Torres Strait Islander Heritage Protection Act of the commonwealth is probably designed for events such as this. Because what it does is it comes into play where state legislation has demonstrated to be ineffective and that’s one of the preconditions for the federal minister exercising power under that legislation,” Mr McIntyre said.

“We do have federal legislation to fall back on and one would hope that the federal minister will recognise that and act appropriately.”

Western Australia's Aboriginal Affairs Minister Tony Buti.

International human rights lawyer Hannah McGlade, an Indigenous woman, said it would be “unacceptable” for the WA government to revert to the original heritage Act and was critical of the WA government supporting a voice to parliament, while failing to listen to Indigenous Australians on cultural heritage.

“This is my advice to them: To respect Aboriginal interests here, Aboriginal voices,” Dr McGlade said. “We’re going to a referendum on listening to Aboriginal people so they should demonstrate here in their own backyard now on this very important matter.”

Dr McGlade said she and a number of other Indigenous leaders had written to the United Nations in December over the heritage laws, as the state government failed to engage with their concerns.

“We advised them all along, this Act would not work,” she said.

“This Act was fiercely opposed by all Aboriginal land councils and representative bodies … there was some improvement (compared to the previous Act) but it still just wasn’t acceptable.”

The Puutu Kunti Kurrama and Pinikura Aboriginal Corporation said it was “devastated and angered” by reports the Cultural Heritage Act would be scrapped, with the PKKP people “left feeling betrayed”.

“The previous heritage Act, which predates native title, permitted the wanton destruction of Juukan Gorge. While the new Act is not perfect, it is better than what it replaced,” corporation chair Terry Drage said.

Asked if the federal government was preparing to step in and field an influx of applications for the protection of WA sacred sites, a spokeswoman for Environment Minister Tanya Plibersek said: “Any application made under the Aboriginal and Torres Strait Islander Heritage Protection Act will be assessed according to the law in the usual ways.”

“Both Liberal and Labor governments have done (so) under this Act for nearly 40 years,” she said.

A WA government spokesman on Sunday said: “The federal government has not approached the state government on issues related to Aboriginal cultural heritage.

“There has not been a decision on the future of the 2021 legislation. As part of our collaborative and consultative approach, the Cook government has been working closely with all stakeholders through the implementation of the modernised legislation.

“That is why an implementation group was established; to monitor, report and help address any issues that may arise, which means immediate changes can be progressed if required. The Premier has made it clear that if changes are necessary, then the state government will work through that with everyone impacted.”