NAIDOC Week 2020: An important year for reflection and advocacy on cultural heritage laws

By Senior Solicitor Lauren Butterly

This NAIDOC week, with its theme of ‘Always Was, Always Will Be’ is an important time to reflect on cultural heritage laws in Australia, particularly in the wake of the devastating destruction of Juukan Gorge in May.

For many years, alongside Indigenous communities, EDO has been advocating for reforms to outdated and inadequate cultural heritage laws. Cultural heritage laws must be judged against the fundamental principle that Aboriginal people must give their free, prior and informed consent in relation to decisions that impact protection of their heritage.

The destruction of Juukan Gorge was a clear example of the inadequacies of the laws in Western Australia. In September 2020, the WA Government released its draft Aboriginal Heritage Bill for five weeks of consultation. The WA Government should be applauded for putting forward reforms where it is desperately overdue, but the consultation period was too short. EDO’s lawyers worked alongside our Indigenous clients and collaborators to pull together a detailed submission in this short time-frame. You can read a short summary of our analysis of the draft bill here, or our full submission here. We are now awaiting the final version of the bill and EDO will continue to advocate for improvements.

However, the Juukan Gorge incident reveals broader issues across jurisdictions. As EDO noted in our submission to the Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia, all cultural heritage laws across Australia need to be reviewed to ensure they meet principles of free, prior and informed consent of Indigenous peoples, and to ensure they operate effectively together to protect heritage. This review must be led by Indigenous peoples. In recent years, EDO has also been particularly involved in advocating for overhauls of other heritage legislation (that are of similar standard to the WA legislation) in New South Wales and Tasmania, and for major reforms to the overarching Commonwealth legislation which is meant to play a role where State or Territory legislation does not adequately protect heritage.

The need for reforms to the Commonwealth legislation was made further apparent this year. EDO acted for Veronica “Dolly” Talbott, as a member of the Gomeroi Traditional Custodians, in a challenge under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Commonwealth legislation) to the lawfulness of the Minister’s decision not to grant protection to several Significant Areas of Aboriginal cultural heritage on the Liverpool Plains, northwest NSW. The Minister acknowledged that the development of the mine would destroy or desecrate the Significant Areas but concluded that the mine’s potential economic and social benefits outweighed their heritage value. This decision, under the Commonwealth legislation, was lawful, the Federal Court held. You can read more about this case here.

As was noted by our EDO Board Member, Joe Morrison, and EDO CEO, David Morris, in relation to Juukan Gorge (but equally applicable to other Traditional Owners): ‘Unless things change, it will not be the last time Traditional Owners are left devastated and emotionally tormented when a place of immense significance is destroyed against their wishes… Apologies cannot replace what is lost. We advocate for a better way to honour the things lost by reforming our national psyche, our laws and our values.’

We are at a critical juncture, and EDO will keep advocating, led by our Indigenous clients and collaborators, for reforms that empower Indigenous communities to make decisions about their cultural heritage.