Labor senator Pat Dodson has blasted the Western Australian government for failing its one opportunity to protect Aboriginal heritage and stop the "tyranny of cultural genocide" after the state's controversial new heritage bill was passed into law.
The new law, introduced after Rio Tinto destroyed a 46,000-year-old cultural site at Juukan Gorge, has drawn anger from Aboriginal traditional owners, shareholder groups and even federal MPs. After months of asking, the bill was finally released to the public on 16 November.
Critics had called on the WA government to halt its passage and conduct further consultation with traditional owners.
"It's a discredit to the legislators and particularly those who advise the legislators," Dodson said. "If you look back at the history of Western Australia, it hasn't been so advanced in this space for a very long time and this was the one opportunity it had to be a bit advanced, and it has failed."
Under the new law, traditional owners do not have veto rights over the destruction of their sacred sites. WA's Aboriginal affairs minister has the final say on all applications, and traditional owners have limited rights to judicial appeal.
"This is heritage that belongs to Aboriginal people. It's theirs, and they've been willing to share that heritage. What we've seen in this state is not just the nature of this bill, but there's been a whole tyranny of cultural genocide going on," Dodson said.
"People haven't had the capacity to defend their cultural heritage against the law and now that's been revealed in the reports of the commonwealth, you would think that legislators would take note. It's not business as usual. This has got to change."
Traditional owners, land councils and heritage groups say they first saw the bill the night before it was tabled in parliament, despite asking for almost a year.
Queensland LNP MP Warren Entsch - who chaired a committee that examined Rio Tinto's destruction of the cultural site at Juukan Gorge - said he had also asked several times to see a copy of the draft, but it was not provided to the committee.
Entsch told the ABC that when committee members did see the bill, they were "quite alarmed" at its "serious deficiencies". They took the unusual step of writing to the WA premier, Mark McGowan, outlining their concerns.
"The four major points that we raised, there was first of all, the due diligence assessment process is still in the hands of the proponents. It means that the proponents, not the Aboriginal people, will have the capacity to make decisions on this," Entsch told the ABC.
"The minister has the ultimate power to decide whether an activity can go ahead if the parties cannot agree on the cultural heritage management plan. The minister can override traditional owners' refusal to give consent - that's a serious problem."
Under the old law, companies applied for and were granted permission to destroy Aboriginal heritage under the notorious section 18, which is how Rio Tinto gained legal permission to blow up Juukan Gorge in May 2020.
The WA government removed section 18 from the new legislation, but under the new bill, exemptions already granted will remain valid for another 10 years.
Rio Tinto alone holds more than 1000 section 18 permissions.
Entsch said that provision was "absolutely outrageous".
A WA government spokesperson would not comment on the letter, but said the bill was "the most progressive cultural heritage legislation in the country" and will deliver better protection for Aboriginal cultural heritage.
"The Bill embeds the principles of free, prior and informed consent in its agreement making processes," the spokesperson said.
"This Bill finally puts Traditional Owners at the heart of decision making about the management and protection of these sites.
"Ministerial decision making only occurs when parties cannot reach agreement and after the Council has attempted to mediate an agreement between both parties. Major decisions on contentious issues are the job of the elected government."
The National Native Title Council condemned the new law as discriminatory and disputes the WA government's claim that it embeds the principles of free, prior and informed consent.
"As we have stated repeatedly, the bill does not make traditional owners the decision makers in the protection and management of their cultural heritage," the council's CEO, Jamie Lowe, a Gundjitmara Djab Wurrung man, said.
"If you want to change a history of heritage destruction to a future of heritage protection, Aboriginal people must have an independent right of review for ministerial decisions, with genuine power to make decisions about heritage sites," Lowe said.
Co-chair of the First Nations Heritage Protection Alliance Kado Muir said the new law will "be business as usual on our sacred sites, which leads to the continued destruction and desecration of Aboriginal cultural heritage".
Ngadju native title holder Leslie Schultz called the new law "feeble".
"If we're to enter a new era post Juukan Gorge, where our heritage and rights are respected, then miners should join us in demanding stronger protections. Otherwise, they're just shedding crocodile tears while destroying our heritage for their own profit," Shultz said.
Dodson said as a Labor senator he was disappointed that a Labor government had introduced "bad policy".
"And being part of Labor you'd think that people will take some notice of your voice and the voices of the Aboriginal organisations and reputable entities that are raising these concerns," he said.
"There's really no shift in the mentality of the state legislators, unfortunately, in this regard, and that's an indictment on us as a nation."
