Escalating costs and regulatory burdens are frustrating stakeholders in the wake of last year’s Aboriginal heritage laws bungle.
COMMUNITY infrastructure projects could grind to a halt in the South West if one of the region’s native title bodies has its way on development rules.
That was the gist of a confidential local government document obtained by Business News in September, which raised red flags about the impact of Aboriginal heritage on investment in Western Australia.
It came about a year after the state government scrapped the Aboriginal Cultural Heritage Act due to opposition from primary industries.
In its place the government brought the Aboriginal Heritage Act 1972, which it had spent seven years criticising, back into force, with a few tweaks.
Proposals within the confidential dossier included concerns over exclusive service provisions, enforcement of “best practice” elements of the abandoned Aboriginal Cultural Heritage Act, an increased remit over approvals, and barring consultation with traditional owners not sanctioned by native title bodies.
Business News understands South West local governments are trying to determine the extent to which they are legally bound to comply with the conditions above, and are concerned such rules would make most council projects cost prohibitive.
The resources industry, too, is raising the alarm at what it describes as substantial cost increases to Aboriginal heritage surveys across the state in the year since the ACHA was scrapped.
To that end, the Association of Mining and Exploration Companies lobbied the WA government to review the cost and timeliness of heritage surveys and provide support to help native title groups cope with increased workloads.
“Most in the industry are experiencing something like a fifty to 100 per cent increase in costs,” AMEC chief executive Warren Pearce said.
“We have already reached the point where something has to be done. It is not possible for us to continue on like this.”
But this is not a simple us-versus-them debate: traditional owner groups are frustrated by policy and consultation shortcomings, too.
Anthropologist Kado Muir, a Ngalia custodian from the Goldfields, said stakeholders needed to decide whether heritage surveys were a market service or a native title right.
“Government and industry have formed the view that participation in a heritage survey is a service, whereas I still look at it from the view that we’re exercising our rights to maintain our sacred sites, our cultural sites, and make decisions about it and seek to minimise damage and impact,” he said.
“If it is a service, then that needs to be driven by market forces and market demand.
“If it is part of an exercise of your native title rights then the tax treatment … the consultation payments, would be different in that it would be a non-assessable, non-exempt payment.”
A list of eight detailed questions was sent to Aboriginal Affairs Minister Tony Buti.
Dr Buti did not confirm if a review of heritage surveys was taking place or what it would cover, did not confirm when cultural heritage surveys would begin, and did not answer concerns about the Aboriginal Heritage Survey Program or Noongar Standard Heritage Agreement.
“In late 2023, the Aboriginal Heritage Act 1972 was restored as the legislation that manages Aboriginal heritage in WA with simple and effective amendments,” Dr Buti said.
“At this time, the state government committed to continuing to work alongside all stakeholders to ensure laws were working as intended.
“The state government continues to consider the capacity, costs and consultation requirements of native title parties in relation to statutory processes and how industry can best work with them efficiently and effectively.
“We are focused on ensuring the system works as it should, and will continue efforts to maintain positive, effective relationships between traditional owners and proponents.”
South West settlement
Karri Karrak Aboriginal Corporation is the body referred to at the top of this story.
The native title group is responsible for the Boojarah region under the South West Native Title Settlement, which covers an area roughly bound by Busselton, Augusta, Manjimup and Donnybrook.
On documents obtained by Business News it’s alleged Karri Karrak quoted $175,000 for a local government to use the group’s heritage services for an environmental project.
That fee was six times higher than the $25,000 quote the shire had received from elsewhere.
In a joint statement by chief executive Abby Phillis and chairman Stephen van Leeuwen, Karri Karrak argued there was no comparison between the two services.
“The corporation is aware that the cost of heritage surveys, like the engagement of other specialist services required to get a project off the ground, impacts on overall project cost,” they said.
“A person who is not a traditional custodian, even a qualified archaeologist, can only identify an artefact, not the cultural significance of the artefact or the location it was identified in.
“Non-traditional custodians of country, including non-Indigenous service providers, cannot assess and subsequently attempt to quantify the values that the rightful custodian ascribes to their heritage.”
Other issues also need to be considered when determining a cost for service, according to Karri Karrak.
The Noongar Standard Heritage Agreement, which sets out what Karri Karrak argues were “deficient” cultural heritage provisions under the settlement, has fixed costs for Aboriginal consultants since 2015, but has allowed costs for professional heritage consultants to be adjusted with movements in the Consumer Price Index.
“The provision is, frankly, racist,” Karri Karrak said.
“And it is appalling the WA government has been reluctant to move quickly to update the NSHA.”
The state government’s Aboriginal Heritage Survey Program, which will build a more robust map of WA’s Aboriginal heritage over 10 years, has also caused consternation.
“While the decision as to whether a proponent can access the AHSP rests with the Department of Planning, Lands and Heritage, Karri Karrak will not support those applications that fail to meet the corporation’s priority criteria (other NGOs, local government authorities and private landholders),” Karri Karrak said.
“Considering the reality of a finite funding source, DPLH’s support of the attempted use of the AHSP by multi-million-dollar proponents, who possess the resources to pay for these services themselves, is a cynical move.
“DPLH prioritising the big end of town, at the expense of primary producers’ and taxpayers’ essential municipal services should be of grave concern to LGAs, the farming community, NGOs and traditional custodians alike.”
Data from the first year of the state government’s Aboriginal Heritage Survey Assistance Program, which subsidises heritage survey fees, shows eight exploration companies have sought help to pay fees in the South West.
The program offers rebates of up to half of the annual rent of an affected tenement and has paid out $30,500 this year.
The heritage survey programs were not working yet, according to Mr Pearce.
“Explorers want to do the right thing, but they just can’t afford to go through the sort of process we are currently being put through,” he said.
“I have members who have been presented with a figure from traditional owner groups for the survey and agreement making process of half a million dollars.
“If you are a small operator, you can’t afford half a million dollars.”
Statewide impact
Mr Pearce acknowledged the events of 2023 – the fallout from the Aboriginal Cultural Heritage Act and failure of the Voice to Parliament referendum – had left relationships between traditional owners and lobby groups on tenterhooks.
“There is a tension, I think, between whether Aboriginal people are performing a service to the mining company or whether they are exercising their rights,” Mr Pearce said.
Nevertheless, he said, relationships on the ground remained amicable, despite the unrest over costs.
“Those [traditional owner] groups are under such capacity constraints, they just can’t deal with the number of things coming at them, which becomes a pretty big block on progress in areas where you have a lot of potential projects,” Mr Pearce said.
“Native title is [federal government] legislation. They set it up, they have responsibility to actually fund these groups, and the state now is under pressure to put in themselves.
“The issue we have to get across to governments is ... unless they put this money in, the revenue they will lose as a consequence of projects not getting up is much more significant than the cost of funding those groups.
“We are getting to the point where this will be a big impact on the attractiveness of investing in WA.”
The taxation treatment of these works – and deciding whether it is a native title right or a business service – could be a solution.
Mr Muir said if the latter was settled on, native title groups must be able to charge market rates.
“Here we have an exercise of restricting and limiting the capacity of Aboriginal people to engage on a market basis with the companies that are operating on their territory,” he said.
“The heritage survey is the front line in terms of economic output of the state.
“An ongoing bias that Aboriginal people should work for free or limit the amount they the ask for is patently unjust, especially when you’re talking about industries that underwrite the economy of the nation.”
Heritage policy
Karri Karrak’s Ms Phillis and Mr van Leeuwen said elements of the abandoned Aboriginal Cultural Heritage Act remained worthy of consideration.
“The identification of Aboriginal cultural heritage as more than just physical artefacts, and the emphasis on agreement making rather than ministerial control, are two examples,” they said.
“The inclusion of penalty provisions that could operate as a real deterrent to harming cultural heritage is another.
“Karri Karrak would urge the WA government to work with the state’s traditional custodians and other key stakeholder groups to rework our Aboriginal Cultural Heritage laws to develop a workable model that provides genuine protections and conforms with contemporary international and industry standards.”
The pair described the amended version of the Aboriginal Heritage Act 1972 as “flawed” and short of the standards project proponents expected.
Mr Muir said the 1972 Act was pretty sound but needed a focus on managing heritage according to inherent value rather than economic significance.
“After all the hoo-ha coming out of the destruction of the sites at Juukan Gorge, apart from some industry sectors like the Responsible Investors Association, I think both government and the mining industry are just doing business as usual,” he said.
