‘I’m sorry’: Roger Cook scraps WA Aboriginal cultural heritage laws

Premier Roger Cook has apologised to the West Australian public for the government’s ill-fated Aboriginal Cultural Heritage Act, describing the controversial laws as too prescriptive and complicated, and placing an unnecessary burden on landowners.

Cook conceded the response to Rio Tinto’s destruction of Juukan Gorge via the laws was wrong, as he confirmed they would be scrapped.

Premier Roger Cook said the laws had been too complicated.Credit: Trevor Collens

The premier framed the backflip as his government “listening to the people” and said he wanted to move forward with consensus, rather than the confusion that stemmed from the new laws.

“It’s crucial that we manage Aboriginal cultural heritage in a commonsense way so that we can move forward together as a community, so that we can restore confidence in our cultural heritage systems, strike the right balance and provide the community with a simple and effective system,” he said.

“When I became premier I said I’d listen, and that’s what I’ve done. I’ve heard, I’ve acted, and today we’re putting those actions into place.”

Cook’s cabinet on Monday agreed to a raft of amendments to the 50-year-old Aboriginal Heritage Act act that aimed to ease concerns about the possibility of another Juukan Gorge disaster, which occurred with ministerial approval under the section 18 provision in the 1972 act.

The most significant amendment will be a new legal avenue for Aboriginal groups to appeal section 18 ministerial approvals to destroy Aboriginal cultural heritage sites.

Another change will be the requirement for the government to be alerted about new information about an Aboriginal site when a section 18 approval has been granted.

In the case of Juukan Gorge, the extent of its significance was not unearthed until after miner Rio Tinto had received a section 18 approval to destroy it, which could not be reversed under the old laws.

The government will also use money set aside to establish local Aboriginal consultation groups required under the 2021 Act to undertake a proactive program of heritage survey planning across the state rather than putting the onus on landowners.

WA’s 2021 Aboriginal Cultural Heritage Act spent six years in development but just 39 days in operation, having taken effect on July 1.

Amendments to the 1972 Aboriginal Cultural Heritage Act

• The newly formed Aboriginal Cultural Heritage Council (which includes prominent West Australians such as Ken Wyatt) will take on the role of the committee established under the 1972 Act to make recommendations to the minister.
• Proponents and Native Title parties will have the same right of review for section 18 decisions, with clear timelines and an ability for the Premier to call-in a decision state significance to act in the interests of all West Australians.
• When a section 18 has been approved there will be a requirement for the owner to notify the minister of any new information about an Aboriginal site – an important reform to help prevent another Juukan Gorge incident.
• Outlaw gag orders in indigenous land use agreements preventing Aboriginal groups from speaking about threats to cultural heritage.

The backflip follows months of anger from the state’s farming sector, which struggled to grapple with the new requirements for landowners with properties larger than 1100 square metres to undertake in-depth heritage assessments and apply for permits to alter or destroy land with cultural significance.

Some farmers had received quotes of tens of thousands of dollars to have this work done.

Aboriginal Affairs Minister Tony Buti also apologised for the furore and said a complete scrapping of the act and simple changes to the old act was the best way forward.

“Our government has decided the best course of action is to repeal the 2021 act and reinstate the 1972 act, we’ve targeted simple amendments aimed at ensuring that there is no further destruction of cultural heritage,” he said.

Both Cook and Buti stridently defended the 2021 act against opposition scrutiny even after it came into effect on July 1, but refused to be drawn on this commentary on Tuesday.

“Labor has always been the party in government that stands out for the most disadvantaged in our community, and I’m very proud of that track record and that’s one that we continue,” Cook said when asked to reflect on comments he made that the opposition was “a dog returning to its vomit” in parliament in June.

WA Attorney-General John Quigley trumpeted his government’s decision to scrap the act but conceded he had never witnessed the repeal of an act so soon after it came into operation.

Quigley said the backlash was the result of unintended consequences of the government attempting to stop another Juukan Gorge from happening.

“I think this all is really a masterclass in the perils of the unintended consequence,” he said.

“I’ve got nothing but complimentary praise for the premier who’s come here today and said it was wrong. As the new Premier, he’ll set it right.

“That’s historic in Western Australia.”

‘Sucked in, Roger’

Reaction to the government’s decision has been mixed, with the Puutu Kunti Kurrama and Pinikura people – who were at the centre of the Juukan Gorge tragedy – lashing the government’s decision.

PKKP land and heritage manager Dr Jordan Ralph said reverting to the culturally inappropriate 1972 legislation was among the worst decisions for Aboriginal cultural heritage protection the country had seen.

“The PKKP are outraged that they, and Traditional Owners in Western Australia, are back to square one, and the Cook Government is reverting to laws that allowed to destruction of Juukan Gorge,” he said.

The PKKP has written to Buti demanding clarification on the decision.

“This is nothing short of a cluster and again, First Nations people are being treated as second class citizens in their own Country,” Ralph said.

The opposition was jubilant. Former Aboriginal affairs minister and Liberal MP Peter Collier blamed what he called WA Labor’s contempt for the opposition and parliament.

“Sucked in, Roger. Now let’s see what you’ve got to say,” he said outside Parliament House.

“This is a complete unmitigated disaster,” he said.

“And responsibility rests entirely at the feet of the Labor Party.”

Opposition planning spokesman Neil Thompson questioned the government’s framing the backflip as listening to the people.

“I think it’s a statement by force, it’s the force of the community that has said you shall listen otherwise, we shall kick you out in 2025. That’s really what I think has happened here,” he said.

Kimberley Land Council chief executive Tyronne Garstone told the ABC Indigenous groups in the Kimberley did not support the 2021 act.

“It didn’t go far enough and it was too bureaucratic,” he said.

“Ultimately, the principle should be that Aboriginal people are the experts around cultural heritage. They should be at the forefront when it comes to the destruction of cultural heritage.”

Association of Mining and Exploration Companies chief executive Warren Pearce welcomed the government’s decision.

“While our members have put significant time and effort into implementing the soon-to-be repealed legislation, ultimately, we believe this is the right decision, and our members will be pleased with the change,” he said.

Cook ‘not pressured’ by federal Labor on Voice

The furore over WA’s laws leached into the Voice debate, with opponents piggybacking off the controversy to warn Australians off any constitutional change.

Cook said he was not pressured by his federal Labor colleagues to scrap the act to give the Voice debate clean air in WA, which looks likely to vote down the proposal according to recent polling. Neither Cook nor Buti would not be drawn on the impact the heritage laws had on the Voice debate in WA.

WA Senator Michaelia Cash said on Saturday the federal government should take notice of the chaos in the west and be cautious with any laws they proposed.

“The chaos that was caused in Western Australia is an indication of what could happen if a Voice to Parliament is enshrined in our constitution,” she said.

“You can scrap a bad law, but you can’t change the constitution once you have altered it.”

At the Garma Festival in Arnhem Land on Saturday, Yes 23 campaign director Dean Parkin welcomed news of the Cook government’s decision.

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