Aboriginal Cultural Heritage Bill is open-ended says WA farmers

The Aboriginal Cultural Heritage Bill was drafted in response to the damaging of Juukan Gorge rock shelters by Rio Tinto in 2020 and passed through State Parliament in December 2021.

The guidelines under the new act will come into effect on July 1 this year.

It replaces the 50-year-old Aboriginal Heritage Act (1972) and is described as providing a new way to protect Aboriginal cultural heritage in this State by giving Aboriginal people a much stronger say in managing their cultural heritage.

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The Pastoralists and Graziers' Association of WA (PGA) and WAFarmers say requirements under the act will cost WA's farmers millions of dollars in getting approval for everyday farming activities that may then be delayed for months.

It is also reportedly costing the government about $77 million over the next four years to set up and implement the scheme (according to estimates in the latest State Budget handed down this month).

A key function of the Aboriginal Cultural Heritage Act is to manage activities that may harm Aboriginal cultural heritage, which can be an area, object, ancestral remains or a cultural landscape.

The PGA said these activities would include all ground disturbance - to a depth of 50 millimetres - on freehold and pastoral land on an area of more than 1100 square metres.

It is concerned that there are no exemptions for farming or pastoral activities.

Depending on the level and type of ground disturbance, the farming or pastoral activity may be classified as tier one, two or three.

Tier one activities require a due diligence assessment and include feral animal and weed control using hand-held equipment, destocking, installation of temporary fencing and vegetation control with mechanical slashing, mulching or spraying.

Tier two activities need due diligence and the issuing of a permit and include feral animal and weed control with mechanical equipment, delving, construction of new stock watering points and yards, ripping and installation of new fences.

Tier three activities require due diligence and an approved or authorised plan and include establishing a new farm or pastoral station, diversification of land use, clearing land, construction of new watering points or infrastructure, delving in new areas, contour cultivation, terrace farming, scarifying, ripping, new yard construction and new forestry plantations.

Farmers will have to notify and consult Aboriginal parties in regard to tier two and three activities.

To do this, there will be a series of Local Aboriginal Cultural Heritage Services (LACHS) offices established across the State.

These are earmarked by the State government to each cost $300,000 annually.

Where these are in place, farmers will have to negotiate with them - on a fee-for-service basis - for tier two and three activities.

The fee schedule will be endorsed by a new Aboriginal Heritage Council.

PGA president Tony Seabrook said this could be anywhere from $150 to $450 per hour, depending on the level of experience and qualifications of the LACHS group members.

"There is no room for negotiation by farmers with the LACHS on the fee schedule and the Act states 20 per cent should be added to fees for groups above the 26th parallel," Mr Seabrook said.

"There is also no timeframe for the LACHS to make their decisions, so it will be a costly, open-ended process that may take months to get approvals.

"And we are questioning whether there are enough qualified or experienced people in the State to run and fill the LACHS groups."

Mr Seabrook said the whole scheme would affect everyday farming activities and he stressed farmers who had infrastructure projects planned for their farms - including building sheds or yards, digging a dam, erecting fences or deep-ripping paddocks - to get these done before July 1.

He said there would also be significant impost on local shire councils seeking to develop land and provide planning approvals.

Mr Seabrook said the PGA would meet with Aboriginal Affairs and Lands Minister Tony Buti in mid-June to press its case and outline its concerns again.

WAFarmers chief executive officer Trevor Whittington said the organisation had been fighting the terms of the Aboriginal Cultural Heritage Bill and Act for at least 18 months.

"It is a massive change to a farm and station owner's property rights," Mr Whittington said.

He said if a farmer needed a permit to carry out a tier two activity, for example, it could take four or more months to liaise and get permission - and if a farmer needed a plan for a tier three application, this could take a year or more.

Mr Whittington said there were concerns that each of the LACHS expected to emerge across WA's South West - probably about six offices - would have varying degrees of professionalism - as do the Native Title body corporates.

"Some will be efficient and reasonable and others slow," he said.

"A lot will depend on the people in the office.

"No doubt, over time, an informal solution can be found - at a price."

Mr Whittington said if all the knowledge holders/LACHS group members could not agree on whether a site had Aboriginal cultural heritage, it was likely to cost farmers even more time and money.

He said WAFarmers had argued for the State government to undertake a Statewide heritage survey to map and capture all Aboriginal sites of cultural significance and put these on a user-friendly website.

"We should be protecting these sites," Mr Whittington said.

"But they need to be the real sites, not those located just where someone wants to build a new farm road or set of stock yards."

The Aboriginal Cultural Heritage Act states that it allows for really important places (of cultural significance) to be named as protected areas.

It says Aboriginal people are the keepers of their Aboriginal cultural heritage and are the right people to look after ancestral remains and secret and sacred objects.

There will be an Aboriginal Cultural Heritage Directory established where people can put a record of WA's Aboriginal cultural heritage.

And an Aboriginal Cultural Heritage Council will run the Aboriginal Cultural Heritage System.

In a statement, Dr Buti said for the first time in more than 50 years, WA would have a modern legislative framework for the protection and management of Aboriginal cultural heritage.

"I am pleased to support our commitment to these new laws with a significant funding investment," Mr Buti said.

"Ensuring the sustainability of local Aboriginal cultural heritage services has been raised consistently throughout the co-design process, both from Aboriginal people and organisations and from industry.

"We need a system that is effective, responsive and able to meet the timeframes set out by the new act to ensure business activities are not impeded, and that there are no risks to Aboriginal cultural heritage.

"Our funding commitment will be subject to annual review through normal budget processes to ensure we have sufficient reserves to respond to the number of LACHS, the level of industry activity and enquiries in the system.

"We expect the first LACHS to be designated by the Aboriginal Cultural Heritage Council over the coming months and look forward to supporting these newly-appointed organisations to build their capacity and prepare for the new system."

The Department of Planning, Lands and Heritage will conduct workshops on the act across WA from this Saturday, May 27.

More information and dates: https://www.wa.gov.au/government/document-collections/aboriginal-cultural-heritage-act-2021-education-workshop-schedule

Wyening farmer Julian McGill was one of many Western Australian farmers and pastoralists to take to Twitter this week, criticising the imminent introduction of the Aboriginal Cultural Heritage Act.

"My biggest concern is how far will this go?," Mr McGill said.

"What is next - it is so open-ended."

Mr McGill questioned the need for and timing of this new act, saying things had been travelling along well under the existing act.

He said he feared farmers would loose control over - and potentially ownership of - their assets over time.

In the short-term, he said the new act would tie up day-to-day farming activities in paperwork and costs to get due diligence, permits and authorised plans drawn up (depending on the type of activity to be done - tier one, two or three).

"Simple things, such as digging fence posts, delving, putting up stock yards, doing deep tillage below 50 millimetres of the topsoil and pulling up tree stumps will require a permit, which may take months to get approved," he said.

"We even have to do due diligence to undertake feral animal control and then get a permit to bury the vermin.

"If you just go ahead and dig a hole you will be in breach of the act.

"Will it end up that we have no control over what we do on our land."

Mr McGill said the Aboriginal elders he had spoken to believed the new system was unnecessary.

He said the new act was a big waste of money and time and, ultimately, farmers would be the ones wearing the costs.

Mr McGill questioned why residential lots had been made exempt, while farmers copped the full brunt of the act.

"It is total government over-reach and it covers all farming and pastoral land," he said.

Long-time pastoralist Raelene Hall said it was the uncertainty surrounding the new Aboriginal Cultural Heritage Act that was causing her family the most angst.

She said just last week they were advised a Native Title claim had been put over their entire Neds Creek station, near Meekatharra.

"We don't know exactly what that means, except that we had to fill in paperwork in a hurry for the Pastoralists and Graziers' Assocation to take action on it," Ms Hall said.

"It seems we will now have a whole legal process to go through - even before we have to deal with a new act."

Ms Hall said she was unsure why a Native Title claim had been made just before the introduction of the Aboriginal Cultural Heritage Act or whether the new act would replace Native Title.

"It is all so up in the air," she said.

Ms Hall and her husband retired off the station in March and she said there was now a feeling of uncertainly about what they had left their sons to run.

"Maybe they will eventually lose the station, or parts of it - it is just the not knowing that is hard for pastoralists," she said.

Ms Hall said it would also be difficult for her sons to get to the series of workshops to explain the new act - as the closest ones were 800 kilometres away.

She said any delays in getting due diligence, permits and plans under the new act for works such as fencing, building or extending stockyards or road building would significantly disrupt annual planning on the station.

"If it is going to take months to get approvals, that will throw things into disarray," Ms Hall said.

"It is just so open-ended."

Ms Hall said there was no doubt that Aboriginal sacred sites should be protected, but most pastoralists already did the respectful thing and wouldn't deliberately damage these sites.

"Now I feel like I am walking on eggshells because every time I raise the topic, I'm often accused of being a racist - which I am not and which my Aboriginal friends will attest to," she said.

"I agree Aboriginal sacred sites should be protected, but we need to have a lot more clarity around this Heritage Act and its implications for those wanting to continue to run pastoral properties."

Esperance-based farm management consultant Ben Curtis, of Farmanco, said he was concerned not many farmers knew about the new act or that it was being implemented in just a few weeks on July 1.

"I am not sure what consultation the State Government did on this, but I get the impression there is a general lack of awareness among growers and pastoralists," Mr Curtis said.

"And I think there should be concerns raised about having this extra layer of bureaucracy in place for any soil disturbance activities.

"This could include scarifying, seeding, delving, deep ripping, shed building, drainage and fencing."

Mr Curtis said there had been decades of soil disturbance by farmers and pastoralists, so it would be difficult to even ascertain where Aboriginal sites of cultural significance were located.

"I don't think even the Aboriginal groups know how this new Act will be administered," he said.

Mr Curtis said the new system could be costly, but more importantly could hold-up farming activities for months on end.

"It just will depend on how long it will take to get assessments and approvals done," he said.