The Minister for Education, Citizenship, Multicultural Interests, and most importantly for the state’s farmers and pastoralists, ‘Aboriginal Affairs’, Dr Tony Buti BPE, Dip Ed, LLB, DPhil MLA is no fool, having racked up degrees in Physical Education, Education, Laws, Philosophy and Liberal Arts at the University of Western Australia, Australian National University, Oxford and Yale.

Unfortunately, all those years hitting the books do not automatically make for a competent Minister or even one capable of recognising when they are digging a political hole for themselves and the government.

Buti, while not responsible for the drafting of the heritage bill or the ramming of it through Parliament back in 2021, is however, responsible for the design of the regulations which have caused such an uproar across the bush over the last few weeks.

All of this noise could have been avoided if the Minister had paid closer attention to the workings of his co-design workshop (or rather its failures) and the repeated warnings by the likes of WAFarmers, the Pastoralists and Graziers Association of Western Australia (PGA) and the Chamber of Minerals and Energy of Western Australia (CME) that what was being proposed was unworkable.

Unfortunately, the departmental staff who were responsible for the drafting of the regulations were far from impartial public servants. Rather, they give every indication they had become activist bureaucrats, more intent on righting past wrongs by empowering future generations of indigenous to hold landholders to ransom than building a workable system of identifying and protecting sacred sites.

Any dispassionate review of the detail of the new regulations would highlight that the three tier system that has been produced is overly prescriptive and confusing as it attempts to determine what’s in and what’s out, down to the last square meter, millimetre or kilogram.

Ask the Department where the 500mm cut off applies, be it to fence posts or deep ripping, or why moving more than 20kg of material is acceptable on firebreaks but not on new farm tracks and you will get a wide range of responses. 

A diligent Minister who had applied himself to the detail would have recognised the risks of running with a system that was overly complex and open to abuse.

A competent Minister would have delayed the start date when they recognised that neither his department, the IT system, the Local Aboriginal Cultural Heritage Services (LACHS) or the industry was ready.

But Buti did neither.

When challenged, his defence is that any criticism is simply fearmongering by dog whistlers, that the new Act is just an update of the 1972 legislation and there is nothing to fear as there are lots of new exemptions allowing farmers to get on with business as usual.

But try interpreting the section on agriculture in the regulations and determining if managing woody weeds or doing soil sampling is a Tier 1, 2  or 3 activity, especially where it is hard not to move more than 4kg of material or disturb less than 10m2 of continuous ground or dig more than 500mm.

As an ex-teacher, Buti must be able to understand that you can’t blame the students when the teaching material is poorly drafted or just plain confusing.  I challenge him to put his own departmental advisers through an exam on the regulations and see how they go in producing consistent responses.  I’m happy to mark their papers.

No doubt the Minister would be familiar with philosophical principle of the ‘laws of unworkability’; those laws or principles that, despite their intended purpose or moral framework, are deemed impractical or infeasible to implement in practice. The Minister has already effectively admitted they need to be tweaked, but for political reasons he refuses to delay their introduction, or even to admit that the community is struggling to understand them.

Just how unworkable the new heritage system is, we won’t know within the Minister’s time frame for reviewing the regulations within 12 months. As I have written previously, this will be a slow burn train wreck which will take years before its full implications are understood.

Anyone who undertakes their own self-assessment, gets it wrong and comes to the attention of the LACHs and the department could be dragged through the courts, literally years after they built their fence or new shed. Only then will the inconsistencies in the regulations be identified.

In the meantime, those who choose to go through the process will face costs and delays plus the risk of having heritage found where there is none. 

Hence the Minister has a problem, but while he continues to refuse to acknowledge that 600 angry people fronting up to a regional meeting, or the tabling of the Legislative Council’s largest petition is a signal that he has not done his job properly means he is setting himself up to follow Dave Kelly out the door when the Premier finally wakes up and needs to find a new Minister to fix up the mess.

The fact that his department is not ready, their IT system is not tested, and the LACHS are not operational rests with him.

A Minister with more experience in the real world of business, or how the public service works would have been suspicious of the potential of an activist department producing a set of regulations that could cause the government political grief.

A Minister with more experience would have tested the regulations with trusted stakeholders before dumping them on the community with only weeks to run education sessions.

Besides delaying the start of the new system, the number one change to the regulations should be to allow a landholder to do a first and final review of their land to identify and map where any heritage sites exist.  Adding the option of a jointly funded government landholder survey that draws a line in the sand on future heritage claims is the game changer that is needed, but this would kill the gravy train that continual assessments will generate and be strongly resisted by the aboriginal grievance industry.

Unfortunately, the wheels of government and indigenous bureaucracy move so slowly that we are likely to see the Minister coming out post July 1 saying, look I told you there was nothing to fear. Odds on this will catch up with the Minister. It’s just a matter of time.

Related story: Aboriginal Cultural Heritage Act 2021 (WA) – Have you got any culture?