Tuesday, October 3, 2023

Aboriginal Cultural Heritage – Western Australian Farmers react to the new law

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On July 1 2023 Western Australia will embark on a radical new approach to Aboriginal Heritage following the introduction of the replacement to the 1972 Act. The new laws will have far reaching consequences to the farming community, many of which are only just coming to light as the WA Department of Heritage workshops the changes across the State. This is how WAFarmers responded to one of the workshops in the central Wheatbelt.    

Minister Buti still hiding: Despite the offer by the Honourable Mia Davies MLA (Nationals) to attend the session, the Minister for Heritage was nowhere to be seen. Odds on he will be far too busy to attend even one of these regional briefings as no doubt  he’s belatedly worked out that his regulations are like Albanese’s Voice referendum, a great idea, until it hits the front bar in the pub.

Liberals and Nationals: Both the Liberals and Nationals are desperately scrambling to catch up with the rapidly moving politics of heritage.  Simply sitting back and saying they did not vote for or against the Bill is not going to buy them a political get out of gaol free political pass.  What they need to do is spell out some major reforms they will take to the next election and take the political back lash from the inner city luvvies and just vote Yes crowd.

Never Never: It does not pass the pub test to accept that heritage can evolve forever. The ability of future generations to claim that any scattering of artifacts, trees, creeks or granite outcrop are suddenly heritage but they can’t recall the native name, a songline or story, simply diminishes the importance of those sites that do have historical significance. Heritage is so much more powerful if it is linked by unbroken word of mouth transition from knowledge holder to knowledge holder over thousands of years, rather than snapped on a iphone as a recent discovery.

Hon Darren West MLC: The Wheatbelt’s local ALP Agricultural upper house member and farmer had lots to say at the meeting defending the indefensible while the Minister is in hiding.  He repeatedly reminded the crowd that heritage laws already cover all our farms and have done since 1972 and they all should have done surveys in the past.  He did not detail if he had himself followed the old laws and had surveys of his farm, but then maybe he was aware how badly they had been abused. 

Big dollars: The big miners have been told they will pay $1.4m per mine for their heritage survey giving them just 20 years of certainty. You may say, who cares, the big miners can afford it, but note most mine sites are smaller than the average WA farm and often, unlike a farm, show no signs of any potential heritage eg rocky outcrop, creeks, soaks, springs etc. The miners are not happy.

Property developers; A developer who was close to settling on a couple of expensive Swan River blocks well over 1100m2 wanting to amalgamate and sub divide got legal advice.  He was quoted $35,000 for his lawyers to represent him and work their way through a survey under the new laws with no guarantee he could build what he wanted if heritage was found.  The lawyers are onto it.    

High value heritage: The government has already identified and mapped the high value sites across the South West eg Wave Rock and Yealering Lakes Entrance, hopefully they are capturing the stories and song lines to go with them. Would we not be better off with the state funding the identification and protecting the remaining ones that come with their heritage stories intact that can be recalled, rather than looking for new ones that just happens to be where the next dam or shed is planned to be built?

History of rorts: We have all heard stories of heritage being found wherever an explorer wants to drill. See the West Australian article  ‘Heritage rorts cost $100m a year’ Thursday, 27 November 2014, where an Ernest and Young report found the average cost of a Section 18 heritage application was about $382,800, with $213,000 for just the archaeological reports and $47,800 in ethnographic work. An average of just $42,000 was spent on consultation with Aboriginal elders. Farmers have every right to suspect the new river of gold will be the heritage just waiting to be found on farm land, even if it’s just a $5000 trip out to kick the dirt and tell you there is nothing there.

Questions on Notice: In the briefing, I noted the number of times that questions relating to Tier 1, 2 or 3 and fence lines, deep ripping or what is considered ‘like for like’ farming activities had to be taken on notice. It’s clear the department is far from ready to give consistent advice so anyone seeking it should get it in writing.

Njaki-Njaki vs Ballardong: Whose country are we on ? From the repeated comments from local indigenous elders standing up mid briefing and urging farmers to not talk to the Ballardong mob, as we were in Njaki-Njaki country, tells me there is trouble brewing.  Makes it a challenge to know who to talk to?

Maps: The fact the department could not give us a map of where each mob’s nation begins and ends is a worry. As a result, I suspect we are in for a world of confusion as to who rightfully speaks for your farm if you are in no man’s land on the edge of someone’s country. 

Kimberley experience; Working in the Kimberley for an aboriginal corporation who had three stations, I recall bitter disputes between mobs and families over who is the traditional owner of that hill, or even where the hill hit the flat.  Mind you that’s nothing new; after two world wars the Europeans are still hard at it, with Russia and Ukraine solving this question the old school way.

Heritage everywhere: The room certainly went quiet when we were told by one of the elders that he had found 70 sites in the last three weeks and there were thousands of sites across Njaki-Najaki country. It seems we could be looking at tens of thousands of sites if we are getting down to every granite outcrop and creek line across the Wheatbelt and Great Southern; more than enough for one for every farm.

Moving feast: Heritage, we are told, is in the eyes of the beholder, and over time it can change. So what was not heritage last year might be heritage next year.  It’s an interesting one to argue against as western heritage changes over time. Who would have though the concrete brutalism of Dumas House where the politicians camp was worth listing as a heritage building?

Modern heritage: Actually we are quite ruthless on what gets registered, as every building, tree, park, cemetery, church goes through a process, and we don’t list every wooden house in, say Fremantle, or stone building in York. Many don’t make the cut.  Maybe the same should apply to aboriginal heritage?  Liberals and Nationals are you taking notes?

Like for like: You will keep hearing the term ‘like for like’.  You can replace like for like fences but not if it includes clearing trees, as trees can be sacred. Anyone got an old boundary fence with no trees on it?  If not off to your local LACHS with your cheque book.

Unforeseen consequences; Soil sampling is a Tier 1 activity unless you are below 1m and removing less than 4kg, but doing 30 soil samples across the farm, for say, deep carbon farming test sites, and collecting more than 4kg per site puts you in Tier 2 or is it Tier 3?  Don’t ask the Minister as he would not know, neither would the Department, but my reading of the Regs is, if it’s near a granite outcrop or creek the precautionary principle requires a walk over from the knowledge holder and potentially a full management plan. Saving the planet just got more expensive.

My next job: I see the CEO for the LACHS can be paid $260/hour under the government’s fees and charges schedule. Quite correctly, an indigenous woman at the Merredin meeting dismissed this as not very much.  I’m with her all the way. I’m putting my CV in and, having worked for an Aboriginal corporation in the Kimberley running heritage surveys under the old Act, I reckon I’m in the running.

Get rich; With the help of a gun heritage lawyer (Aidan Kelly LLB- mate we are back in business, just like the good old days, this time it’s the farmers not the miners that will pay), with access to satellite photos and drones I would expect to be sending invoices to most farmers in whoever’s country I work for, particularly if the mob get smart and link our hourly rates to the income we generate for the elders we work for, we can all get rich together, literally by share farming country.

Fees: Senior Aboriginal Consultants $1200 day rate, Other Expert Providers $2000 day, Admin Fee 15 per cent, a simple desk top survey for Tier 2 $500 and on the ground, survey costing anything between $2000 and $10,000 plus plus if you need a full management plan. I’m guessing, but the average LACHS will cost $1.4m a year to run and there are 14 needing to live off the property owners across the South West of the state.

LACHS: None of the LACHS are up and running yet, but the government tells us they are starting a training scheme in July. Seriously, the Act was passed two years ago. Minister Buti as minister wears this one.  He has promised they will run a TAFE course training them how to run surveys. One wonders why this is necessary if they have had the knowledge passed down.

Petition: Well done PGA and Liberals for getting 30,000 signatures on the Legislative Council petition calling for a 6 month delay. WAFarmers have been busy working on not a delay but a complete overhaul of the regulations to take the money out of the incentive to find heritage everywhere we want to build something.

Future proofing: One glimmer of good news is you can do a deal with your local LACHS and bring the elders out to undertake a full survey and lock it in for a set amount of time.  Spending $10,000 each with your five neighbours to lock and load heritage certainty for the next 50, 500, 5000, 50,000 years by mapping all sites could be a good use of family farm funds. But good luck with that as the lawyers will not want their gravy train to end. But I suspect the elders will be open for a deal so long as it’s win win and real heritage is protected and farming can continue.

Old Act prosecutions: Interesting to note that even under the old Act very few prosecutions were pursued with about one each year across the South West. The old Act was not weak but there was no incentive to go chasing farmers over normal farming activity.  Are we solving a problem that does not exist?

Q and A: The department needs to make it far easier to follow the schedule of what’s acceptable and what’s not. I bet the Minister would fail a simple test of fence lines and tiers even if given a days notice to study up and he’s book smart. A list of Q’s and A’s on the govee web site is a first step, but then I doon think they have the A’s.

Renewable energy: Good luck to the government achieving its renewable energy targets when every power pole, wind and solar farm is going to end up on a heritage site.  We all will pay in our power bills.  Hopefully you don’t have a wind farm coming onto your property.

How much: Everything has a price. No one is talking about what it will take to buy away the heritage. If you want to put your tank stand or mobile repeater on the top of your hill, what’s it going to cost to fast track the approvals or make sure the wuggle can live with it? The miners have it down to a fine art of how to pay to make things go away.  My guess is business is about to boom for the Toyota dealers in the Wheatbelt.

Land Cruisers: Reconciliation might take a turn for the worse if too many Landcruisers end up being parked in front of LACHS offices. Lucky for the Voice vote is the LACHs are not up and running yet. Any BMWs you see will be are the lawyers’ cars.  No Teslas as there are no charging stations. 

2030 Heritage Project: Lets fix this by 2030 and survey every farm, pastoral station and land title in the state and sort it out once and for all. The state needs to fund the elders to identify what’s important, let’s put them on they government payroll to walk the state and capture all the important places, map it and make it part of all our heritage.  If it costs $100m a year it would be cheap at the price.  (The miners would be the first to come on board) Anything is better than what the government has come up with which is hitting private landholders to pay on the never never for ever.    

Heritage is important: I studied Australian History at University, it is one of my passions. All heritage is important. Aboriginal heritage needs to be protected.  Let’s do it properly, not this way which is forcing it on private land holders and encouraging heritage to be created where none exists.

Legal advice: Do nothing, don’t turn a sod from midnight 30 June until you get legal advice.  Take some good legal advice to keep the rent seekers at bay or at least until we can get some reform to this horrendous legal mess the government has dropped on the state.

Racism: Spare me the predictable criticism I expect to get through social media that this is a racist rant. I’m simply encapsulating what many are thinking if not saying at the meetings being run across the State by the government.  This is poor policy that needs to be publicly debated. Maybe the Minister will join me at a public forum with the Liberals and Nationals to debate the merits of his regulations. I await his positive reply.

Related stories: Implementation on track for new Aboriginal cultural heritage laws: Cook, Buti; WA’s Aboriginal Heritage mess; Aboriginal Cultural Heritage Act 2021 (WA) – Have you got any culture?


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