WAFarmers met with the Western Australian Minister for Heritage recently. We had an interesting discussion on the roll out of the State’s new Aboriginal Cultural Heritage Laws.
The Minister clearly believes that the new laws won’t impact farmers the way our lawyers tell us it will; in his view the roll out is smooth and all it needs is some tweaking.
But before we launched into the detail on the problems we have with his new Act, he gave a short lecture about how disappointed he was with the organisation’s CEO, even though I was sitting there in the room.
Which is fine, disappointing Ministers is what I do, but I also try and help them with some salient advice.
In this case, aside from the 10,000 words and six articles on heritage I’ve published, plus a long submission on the problems with the Act and warnings of the impending disaster of the roll out, the Minister was aggrieved by the fact that I had piled into a interview on the Country Hour immediately following the first of the meetings with his new stakeholders implementation panel to suggest that the Minister needed to fast track changes to fix what many peak bodies say is an unworkable Act.
Now it is true the Minister had asked all who attended the meeting not to divulge what was discussed, something I feel I had adhered to if you listen to a replay on The Country Hour web site. I gave nothing of substance away and in fact repeatedly told the radio audience I was gagged from commenting on any detail.
So, while I may have disappointed the Minister, the question he has to answer is, why gag a meeting? It’s not a good look, it’s not exactly the ‘gold standard of governance, accountability, transparency’ as promised by McGowan when he brought Labor back into power.
The very fact that the Minister has scheduled one meeting a month for an hour when there are a dozen stakeholders involved was never going to get us anywhere fast, but it might have been clever enough to get the issue off the front page, at least until after the Voice referendum had passed; no doubt something his State and Federal parliamentary colleagues would have been demanding.
It might be politically cynical for me to mix the Heritage debate with the Voice but I’m not the only one. Actually I think that the Minister may know something about the solutions to Indigenous disadvantage that the rest of the Yes supporters don’t know, and that is that no Voice in Canberra will ever be loud enough to address the concerns of those living in the failed states of remote Australia.
The Minister has authored three books on the stolen generation, so he is well voiced in the intractable problems of Indigenous remote Australia and the fact no government and no amount of money can address economic disadvantage where there is no economy.
In fact, I suspect he may be a secret No supporter and is working to ensure Australia is not divided and everyone has an equal voice and equal opportunity. Why else plough on with the roll out of an Act that was so clearly going to run into trouble?
If Western Australia is the swing state and the Yes case goes down by a handful of votes, he risks going down in political history.
Good Ministers always have a hard head in their office whose job is to offer contrarian advice, and keep a eye out for departmental overreach. Something like this.
“Minister we have a problem with the new regs, the department got them to us too late, the regs don’t make sense when put against the guidelines, there is no information comms package, we don’t have enough time to do regional consultation, we have not brought in the peak bodies, we have not tested this with some external lawyers, none of the LACHS are up and running, the incentives for abuse of process are too great, and if this goes pear shaped the feds will go beserk. We have to delay the start date, otherwise you are going to be all over the front page. This is not going to end well.”
But it seems he has no such person in his office or, if so, did not listen.
So, in the case of no contrarian adviser, I thought I would offer my services. God knows I’ve spent most of my career giving politicians advice they don’t want to hear. Some listen, while others, including the likes of Dave Kelly and Alanah MacTiernan, knew better and look how that ended. So, Minister, some more advice.
First, the implementation group is doomed to fail just as the co-design group failed as it’s not addressing the fundamentals, and groups from divergent positions can’t over complicate fundamental policy differences.
You need to understand that your very learned background of Oxford etc, your PHD, your books on Indigenous issues has left you with a huge political disadvantage when it comes to seeing how the Aboriginal Cultural Heritage Act was going to play out on the ground far below the ivory tower you come from. Walking over private property rights is political dynamite when you are talking about backyards bigger than 1100m2.
But fear not, I have the solution for you. The punters have a grudging respect for a politician that can step in, blame the department and change direction. No doubt there will be wails from the rent seekers, starting with the lawyers who were about to dive into the trough, but who cares when you have a better way forward?
What you need is a win win, something we gave you at the WAFarmers meeting. So, for the benefit of readers and your staff and those backbenchers eyeing off your seat, here is the way forward that will cement your career in this government, as a Minister who not only listens but acts.
Like for like: is literally not liked by the lawyers. It’s a recipe for legal confusion. Fix it by putting a clear exemption in the regulations around all agricultural activities on already disturbed farm land.
Permanent: Permits need to be permanent and all surveys to have continuous effect. For heritage to be allowed to evolve over time to the extent that we have to continuously undertake them is an abuse of process, allowing a perpetual state of uncertainty to exist about a property’s heritage status and will be the first thing the opposition promises to fix.
Freehold survey: If, as you claim, heritage sites are so few and far between, then it should not be hard to engage the 200 or so senior knowledge holders across the Noongar lands to map the sites and capture the stories. Think of it as if you are following in the steps of Roe, the state’s first surveyor, Sir John Forrest, both a surveyor and our first Premier and Canning of Canning Stock Route fame. A good map will put you on the state’s history map up there with the greats. Three years of full time employment for all the more vocal knowledge holders should get them off the front page and you onto it, this time in a positive light. Not to mention shave decades off finalising the locations of Indigenous heritage across the 18 million hectares of freehold farm land owned by 6000 farming families.
No exemptions: The argument that heritage is important down to 1100m2 but can be extinguished under that size reeks of political opportunism. The average footprint of a WA home is well under half that and houses can always go up to avoid the wuggle in the back yard. We are all in this together. You don’t want to be the Minister responsible for destroying heritage on blocks owned by rich people in Mosman Park, while the battler in Merredin is forced to pay for a heritage survey. Level the playing field and remove any exemption.
Costs: No one wants to talk about the cost of surveys, but I do. Every farmer is aware that the formula the government has put up is ripe for abuse. If the state can get down to the detail of what the LACHS can change an hour, then they can also set maximum fees for heritage surveys. The mining industry is paying between $80,000 and $100,000, which is extortion. If the government set a fee of $1000 on each freehold title, then that would end the incentive to turn surveys into a industry.
LACHS funding; The government should fully fund the LACHS. If the government has already funded a survey of all freehold farm land, much of the work has been done.
Heritage can change: Allowing intangible heritage rights to impact property rights is like passing blasphemy laws. We see it as barbaric to hear of people being gaoled for their criticism of religion, let’s not import such values here. Intangible spiritual beliefs are just that, intangible and they should not be hurt by planting a tree or building a shed. They don’t fit into the modern secular economic world of private property rights, so let them be and not put a price on the offence of disturbing things we can’t see.
Private property rights. If Treasury had to pay compensation for the loss of a private property right it might put some honesty in the debate. If heritage is important then the whole community can pay to protect it, or at the very least pay a lease on land that can no longer be disturbed as due and fair compensation.
The old Act vs the new. Don’t keep raising the old Act and the fact it always applied. It was not regularly enforced over freehold land and the original parliamentarians never intended it to be like what we are seeing with the current Act. No doubt if the old Act had been enforced to the full letter of the law back in the 1970s the law would have been changed, so running the argument that nothing has changed might work in the academic world but it does not work in the paddock or the pub.
Let’s be honest: Heritage can be fabricated if for no other reason than people are flawed beings, people lie, some are greedy and some are desperate. Which means sooner or later someone will use the new laws to claim heritage exists where it doesn’t, and will seek to financially benefit from it. In fact, it’s already started ($2.5m for tree planting) and the politics of this is it is political poison for the community. Waiting for the first of the demands for payments for surveys or to oversee ground disturbance is political suicide; wait for the battling veteran, the single mother, the drought-stricken farmer to be hit with an oversize heritage survey invoice. You are not dealing with the mining sector. This is divisive, dangerous and politically deadly.
Related stories: Aboriginal Cultural Heritage Act update: WAFarmers; Aboriginal Cultural Heritage – Western Australian Farmers react to the new law; Aboriginal Cultural Heritage Act 2021 (WA) – Have you got any culture?; Implementation on track for new Aboriginal cultural heritage laws: Cook, Buti
