What is a sacred site? According to the government, sacred sites are places within the landscape that have a special meaning or significance under Aboriginal tradition. Hills, rocks, waterholes, trees, plains, lakes, billabongs and other natural features can be sacred sites.

Under the 1972 state heritage laws, any disturbance of a sacred site is illegal unless it has gone through a process of heritage approval, with only the Minister having the right to override the Act (Section 18) in the interest of state development.

The fact that Section 18 has existed for the past 50 years has helped keep in check the progressives in the government from finding cultural heritage on every granite outcrop, paddock and creek.

This has kept a degree of common sense in defining what deserves protection and what can be disturbed in the interests of the broader community and economic development. 

But come the Mabo decision and the introduction of native title in 1993, the opportunity to use Commonwealth law to find heritage sites across every prospective exploration permit as part of negotiating tactics on Crown land has now become an industry in itself.

Negotiating over heritage has been a gift that has kept giving for the lawyers over the past 30 years, but one has to question its effectiveness in helping to protect these sites as every site seems to have a price on it that will willingly be exchanged for royalties.

Just as the abundance of sites has not helped the transfer of cultural knowledge to the next generation. The sad fact is today’s youth have not embraced the language, culture or songlines of their grandparents to the same level of enthusiasm as they have embraced hip hop, tik tok or pop.

No doubt, stating the obvious will spark howls of outrage, but it’s the way of the world, money talks and all indigenous cultures across the globe have been swamped by globalisation and the power of the dominant American culture to attract the youth today.

However, as fast as Indigenous youth are losing the collective memory of their culture, along with the location of sacred sites and what they mean, there is a generation of activist politicians and bureaucrats who wish to right past wrongs by protecting everything and anything.

Fortunately for the farmers, native title does not impact freehold land where it has been extinguished, but that does not mean they are exempt from protecting sacred sites under both state and federal heritage legislation.

While vast amounts of clearing has no doubt disturbed many sites, many still exist, largely untouched in the granite outcrops and creeks which were left uncleared, but increasing they are being forgotten by new generations of cultural knowledge holders.

However, the recent push to find and protect new heritage sites by government has focused not just on these uncleared localities, but also on the broader definition of plains and hills which opens up cleared paddocks to be caught up in the WA state government’s new cultural heritage Act which is due to come into force this year.

Where cleared land will become a target under the new laws, it must be remembered that most of the wheatbelt was cleared well before the 1972 Act came into existence. This is a grey area that no doubt will be tested in the courts in coming years, at vast expense to the farmer who becomes the test case bunny.

The one big failure of the 1972 heritage legislation is than it failed to build a full register of aboriginal heritage sites across the state, something that would have been immensely valuable today as more and more of the knowledge of the older generation is lost.

With no detailed data base and a loss of the older elders, the way is now clear for a new generation of activist elders, with the help of activist bureaucrats and an activist government, to find new sites where none previously existed or to expand the boundaries of known sites. 

This was foreseen back in 2013, when the Barnett government introduced new guidelines on the interpretation of a “sacred site”, which declared that “for a place to be a sacred site requires that it is devoted to a religious use rather than a place subject to mythological story, song or belief”.

It was a common sense effort to put some rigor into how heritage sites are defined. The new definition was aimed at putting an end to the growing number of ambit claims which were attached to every new major state development be it a road, bridge, port or mine.

Unfortunately, a Supreme Court decision in 2015 threw this new definition out in a landmark judgment against the Port Hedland Port Authority, which had gained approval to build a new wharf on a site that the Department of Aboriginal Affairs had registered as the home of the Warlu, or rainbow serpent, back in 2008.

The application by the indigenous lawyers to stop the new port development had been denied under the new guidelines of 2013 as it no longer qualified as a sacred site, because, of a “lack of evidence of specific rituals, ceremonial and cultural activities associated solely with the site”.

While the government had determined that the mangrove flats could be excavated as they were not being actively visited as a sacred site, the court determined that the new ‘religious use’ definition was too restrictive and hence invalid.

This judgment opened up the opportunity for cultural knowledge holders to demand that every sacred site deserves protection.

This is the pivotal point in what will be a long fought war, similar to the fight over native title, a debate over when does a sacred site remain alive and when does it move to being lost to the past.

The clash is one of cultural relativism, the relevance of the man made vs the natural. Is protecting monuments, be it pyramids, temples, giant rock placings, carvings or churches as important as protecting geographical features for their spiritual value?

While it is relatively easy to build a case to protect a limited number of Roman ruins, crusader castles, cathedrals, or rocks in Jerusalem that are pilgrimage spots to thousands of people, it’s far harder to make a case for abandoned churches like those we have in abundance across the Wheatbelt to remain hallowed ground or even every granite outcrop which is claimed to be an indigenous heritage site.

Not everything, once sacred, remains sacred, and not everything should remain protected forever.

The Europeans retain Roman, Greek, and ancient monuments like Stonehenge because there is something historical to see, but we don’t protect every last druid spiritual place we know of that is linked to natural features in the landscape once the culture or civilisation has been largely lost or has evolved.

What value should we place on geographical heritage sites when there is no one left who retains any cultural knowledge, or who can recall the site’s exact location, the song lines or its mystical significance without the help of long past knowledge holders or detailed records?

Even when sites are named and claimed as significant, what meaning does it have if they are not visited or the knowledge is not being actively passed on to the next generation?

It’s a conversation we seem incapable of having without accusations of racism being thrown around in an effort to cancel the debate.

As it stands today, most of the registered Aboriginal sites in WA have been identified as a result of minerals exploration or main roads surveys, with few sites to be found registered across the Wheatbelt. 

As the Karara mine at Mullewa found when surveying for their power line through various farming properties, the visits by elders identified multiple sites, but almost none had been registered or actively visited.

Outside of the obvious geographical features like nanna holes, caves or rock art we need to ask when is a cleared paddock or remnant bushland that is claimed to be sacred, worthy of protection?

This is what prompted the then Liberal government to put up not only the new guidelines but also amendments to the 1972 Act.  It was to give clarity to what was and what was not an aboriginal heritage site that deserved protection from disturbance.

At the time of the Supreme Court decision, the Barnett government already had changes drafted which gave the head of the Department of Aboriginal Affairs responsibility for evaluating the significance of Aboriginal heritage places and objects, along with increased penalties for destroying sites.

These were workable and constructive amendments that offered protection but ensured that miners, farmers, developers and councils were not bogged down in an endless costly approval process as has happened with the Commonwealth Native Title Act.

Unfortunately, the amendments never made it past the Upper House as the Nationals decided they did not like the hard-nosed approach and instead put up alternative amendments that mirrored clauses put forward by the lawyers working for the Yamatji people.

At the time Liberal Minister for Aboriginal Affairs, Peter Collier said:

“They were pretty much the amendments from one of the lawyers who decided they would get an enormous amount of money out of representing Aboriginal groups.”

“There is no way I could progress with the bill, which would effectively have made the Aboriginal Heritage Act worse than it currently is,” he said.

“The National Party will have to wear this because, quite frankly, they are the ones that scuttled the bill, not us.”

As the bill was not amended by the time of the 2017 election it was left for Labor to come up with their version of new heritage legislation, something all farmers will now regret.

Why, because Labor’s woke inspired agenda was supercharged by Rio when they blew up Juukan Gorge in 2020.

The McGowan government passed its new Bill last year which removed the controversial but useful Section 18 approvals process, bringing it more in line with the federal Native Title Act, allowing traditional owners the right to negotiate, which is the signal to the lawyers to pile in and target farmers as if they were miners.

Currently we are in what the government calls the co-design process where WAFarmers, PGA and CME sit on one side of the table and about 60 lawyers and rent seekers sit on the other claiming that normal practices like deep ripping should be a 3 level of disturbance.

It’s a losing battle, with all indications that the new regulations will demand surveys for any major change to a fence line, road, dam or shed or even deep ripping.

The new Act is due to kick in sometime this year, but this does not mean farmers are off the hook as Departmental officials are now out and about actively prosecuting under the old Act.

Something Toodyay property owner Tony Maddox recently discovered following a visit by inspectors from the Department of Planning, Lands and Heritage who charged him over the construction of a new crossing over the creek that runs through his farm.

The inspectors claimed he had upset the Waugle, the local rainbow serpent, by concreting on top of his old bitumen crossing that he had built some years ago. Worse, he had recently cleaned out 400 m3 of silt that had washed into his creek, plus planted trees and pumped water in from a bore to make it a permanent dam. 

It was not as if he had build a Margaret River scale massive vineyard gully wall dam, but apparently the Waugle was not happy.  Interestingly, the Waugle or some other local spirit has never had a problem with a Margaret River dam or maybe they are soon to awaken with the help of government inspectors.

Being ofay with government approvals, Tony had previously gone to the effort of consulting the old Waters and Rivers commission some years ago about lifting the crossing on his creek, but they were not interested as it was just that, a creek. The local council were also consulted but no development application was needed. Neither mentioned the need for cultural approval.

Tony never thought to consult the heritage department about sacred sites as it was a relatively small amount of work on an already disturbed site in a region that had not been a hotbed of past cultural heritage approvals.

The local Indigenous knowledge holders (elders) were invited out to inspect the site by Tony after he was charged. They confirmed that there was no known cultural value attached to the site, but the department insists it exists on their unpublished maps, so it had to be sacred and besides the heritage rules had been around since 1972, so there is no excuse for not knowing the law.

It’s now in the courts with the local elders having been warned off from getting Tony off the hook, which is not a good omen and a disaster for local indigenous relations, but a gift for the department who won’t be contradicted in their claims.

When heritage moves from easily identifiable caves, rock art, convict buildings and federation houses to mythical spaces that are not registered on published maps, widely known and regularly visited, then we face endless abuse of process, as everything everywhere becomes sacred with a price attached to any disturbance.

Tony Maddox has now been advised by some of the best legal minds in the state to plead guilty and avoid the possible nine months prison and the $20,000 fine, while other lawyers say fight it. But then it’s not unusual for lawyers to say you have a case when you are paying by the hour, not by the chances of success.

A guilty plea or a loss sets a dangerous legal principle for all those farmers who have to build a dam or a crossing on a creek.

And this is under the old Act, one that was rarely been used in the freehold part of the state. Wait until the new Act comes in and we will see energised departmental officials with the powers to come on any freehold property with access to satellite maps looking for areas of ground disturbance. 

It’s not hard to imagine a future where farmers will routinely have to buy their way through the approvals process by paying go away money under the new tiered system of disturbance.

Tier 1 includes maintenance of fire breaks which will require a due diligence assessment. Tier 2, things like the installation of solar panels and signs will require a permit. Tier 3, high level of ground disturbance building a dam, bore, new fence or road will require a full on site assessment with visits from the local elders and a registered management plan. 

A recent consultation fee proposed for a Kimberley station which wanted to drill a test bore was over $200,000 but there was a degree of tension between proponent and the local Aboriginal group which no doubt inflated the price and discounted the chance of any approval ever being given.

For those on better terms, the farmers, prospectors and councils can expect to pay around $5000 for a basic heritage survey. Just pray they don’t find or feel anything sacred as that fee will be the least of your problems.

Welcome to the world of progressive governments and activist bureaucrats who want to alleviate their guilt by making others pay.

The only solution is for the State Liberal and Nationals to make this an election issue. They need to commit to funding a comprehensive heritage survey across the entire state to map every last site and publish it for all to see, plus record the song lines and stories attached to them for posterity.

They also need to commit to amending the new Act to lower the threshold of disturbance so that normal farming development activities are exempt in all but sites that continue to be regularly visited under the old 2013 guidelines of active ceremonial use.  

Protect the high value sites by all means, communicate the stories linked to our farms and communities, elevate and celebrate the culture, but let’s get away from the rent seeking that encourages the identification of cultural sites wherever some ground disturbance is needed.