THERE are growing calls from farmers for the State government to delay the implementation of the controversial Aboriginal Cultural Heritage Act (2021), which is due to come into effect on July 1.
Within 24 hours of a petition to delay the act by at least six months being put to the Legislative Council by Pastoralists and Graziers' Association (PGA) president Tony Seabrook last week, it had 2000 stakeholder signatures.
At the start of this week that number had blown out to more than 12,000 signatures.
Hundreds of farmers have also attended education workshops run by the government to support the implementation of the new legislation - including more than 600 people at Esperance on Monday.
Delaying the implementation of the new act is supported by WAFarmers and Liberal Mining and Pastoral Region MLC Neil Thomson.
Mia Davies, the Central Wheatbelt MLA for The Nationals WA, has also written to new Premier Roger Cook calling for a delay, however Aboriginal Affairs Minister Tony Buti is maintaining a hard stance with the controversial act starting next month.
Mr Seabrook plans to meet Mr Buti today to prosecute the PGA's case for deferring its implementation.
He said he would be asking for a delay of at least six months, but ideally it would be one year.
Mr Seabrook will also mount a case for the legislation to be reviewed.
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He said pastoralists and farmers had many concerns, including the need to do due diligence for some activities and get permits for others.
"Not only could this be a lengthy process, it could cost upwards of $450/hour to get a due diligence report prepared," Mr Seabrook said.
"And if we don't comply with the act, we are opening ourselves up to be charged with a breech.
"I also have concerns about members of a new Local Aboriginal Cultural Heritage Service (LACHS) going on to farms to assess them for sites of cultural significance.
"No one should be able to come out and tell farmers what they can do on their own land.
"These LACHS are supposedly costing the State government
$77 million and we don't yet know who will be on them and what exactly their power will be."
WAFarmers president John Hassell said his organisation was seeking government clarification about surveys of sites of cultural significance, what farming activities were exempt under the act and where all the sites of Aboriginal cultural significance were across WA.
The Aboriginal Cultural Heritage Act 2021 was designed to make a significant step towards achieving equity in the relationship between Aboriginal people, industry and government by replacing outdated Aboriginal heritage laws.
It centres on agreement-making with Aboriginal people to ensure they can protect and manage their cultural heritage on their lands and embeds the principles of free, prior and informed consent in agreement-making processes.
What has not changed with the new act is the need to seek approval for activities that may harm Aboriginal cultural heritage - this already exists.
Where there may be an impact to Aboriginal cultural heritage, there may be the need for an approval.
Where there won't be any impact, no approval is required.
A tiered system provides for activities to be categorised according to the potential level of harm and there is a corresponding authorisation/permit process for each of the tiers.
This will help to determine the level of due diligence to be undertaken by a land user, and whether a permit or management plan is required.
There are guidelines that set out a fee structure for the fees to be charged for services provided in connection with the functions of LACHS.
Under the new laws, LACHS will be a one-stop shop for both notification and consultation by a land user.
The PGA's petition to government states that deferring the introduction of the new laws will allow farmers to:
Familiarise themselves with the system and receive training
Apply for the continuation of existing business activities
Apply for new planned activities before the act comes into force
Adjust contracts for existing and future works
Meet obligations of referral agencies when seeking development approval
Have final guidelines in relation to LACHS, referral agencies, inspectors, local governments, business owners, landowners and staff that will be subject to the new laws
See the establishment of the LACHS and making sure these are appropriately resourced, governed and trained.
Dr Buti said there was no reason to delay the implementation date.
"The system will be ready to go when the new act comes into effect on July 1," Dr Buti said.
"Dozens of education sessions continue to be held around the State and the new act and regulations are informed by more than five years of extensive consultation."
Dr Buti said last year more than 1000 people attended workshops in Perth and regional and remote areas and there were more than 200 submissions from Aboriginal people, land owners, local governments and industry representatives.
He said it has been unlawful to harm Aboriginal cultural heritage in WA for more than 50 years and that would not change under the new Aboriginal Cultural Heritage Act 2021.
"This new process makes it simpler and fairer," Dr Buti said.
"WA's current legislation is outdated - it wasn't good for Aboriginal people or land users.
"It led to incidents like Juukan Gorge."
Dr Buti said everything that land users were already doing now would be permitted under the new act, as exemptions apply for 'like for like' activities.
He said a farmer would not require approval to plant a crop, run livestock or replace a fence or other existing infrastructure.
Existing mining activities and maintenance of infrastructure will also be able to proceed without approval and all residential properties under 1100 square metres will be exempt.
For land bigger than 1100m2, a permit or management plan will only be required where activities are expected to impact Aboriginal cultural heritage, Dr Buti said.
"The new act recognises that local Aboriginal organisations have the authority to speak for Country, and be directly engaged on activities where there is a risk of harm to their cultural heritage," he said.
"It will also provide a clearer framework for the protection and management of Aboriginal cultural heritage."
Dr Buti said land users would benefit from a better, more streamlined system.
"What is often forgotten is that government is the single biggest user of the Aboriginal Cultural Heritage Act," he said.
LACHS will be established by the State government and become the designated point of contact with local expertise in their area.
They will provide advice about Aboriginal cultural heritage, help negotiate and facilitate agreement-making on land-use proposals and take on operational and administrative responsibilities.
The government recently provided a $77m funding boost to support the implementation of the new system, and ensure the sustainability of the LACHS.
More than 20 organisations have already applied for grant funding with intent to become a LACHS, but it is important to note the new laws do not rely on LACHS being established.
"Where LACHS don't exist, Native Title bodies will be able to support the operation of the act - just as they have done for decades," Dr Buti said.
"A new IT system that supports the act has been developed over the past 12 months and is currently in testing phase with industry and on track to be fully operational by July 1."
Whadjuk chief executive officer David Collard said the aim of the new legislation was to "put teeth into the system to protect significant sites of First Nations people".
"All over the State, there are a lot of sites that are not registered," Mr Collard said.
"And, at the same time, there are also a lot of land owners who are already protecting sites.
"I understand the new amendments may scare some growers...but I wouldn't worry too much because the changes are mostly in administration of the act."
Mr Collard said the government's engagement and consultation process was not great, but the industry had to get on with it now.
He believes Aboriginal groups and landholders will be able to get on and work together under the new legislation and come up with solutions at a local level.
"The act is not perfect, but it is workable," he said.
"We want to work with farmers so that it is business as usual for them and they can carry on - but at the same time while protecting any cultural sites."
Mr Collard said the LACHS system was a lot better than what was in place currently because they would be regionally based and have local knowledge.
