New Aboriginal Cultural Heritage Act meeting in Kalgoorlie-Boulder provides information to miners

The State Government attempted to clarify Aboriginal cultural heritage laws at a meeting in Kalgoorlie-Boulder on Friday as concerns continued to be raised two weeks out from the Act’s implementation.

Department of Planning, Lands and Heritage heritage projects manager Cesar Rodriguez said exempt activities included recreational activities, maintaining existing infrastructure in a way that did not involve new disturbance to ground, and undertaking activities that were essentially like-for-like activities.

Lifestyle and general maintenance were also exempt, including gardening, repairs and carrying out minor development.

Miners with programs of work who attended the meeting at Kalgoorlie-Boulder Racing Club expressed concern they would not be able to continue working on a tenement, or that their approvals would not be recognised by the new Act.

Mr Rodriguez said under a PoW, a permit was issued by the Department of Mines to work on the area, but it did not give the applicant the right to harm heritage — this applied under the 1972 act as well as the new 2021 act.

He said the miner would be taking a risk undertaking activity in the area without a survey which identified if there was Aboriginal cultural heritage in the area, and the Act could be used as a defence if legal issues cropped up involving Aboriginal cultural heritage on the mining site.

Meeting attendees raised concerns about the fees Local Aboriginal Cultural Heritage Services could charge to receive a permit, and that no LACHS had currently been put in place despite several applications from corporations.

Attendees said if LACHS were not put into place in the Goldfields by July 1, then applications would need to go through native title holders — which was the current process under the 1972 act.

However, Mr Rodriguez said even if applications went through LACHS as a first point of contact, they would engage with native title parties and the prescribed body corporate throughout the process.

“When there is no LACHS, you’ve got to consider two things. Who the native title party is, and in most instances they will represent the native title holders, but you need to go to any knowledge holders who may not be represented by an external party and that is to make sure that knowledge holders in this system do have a voice,” he said.

An attendee also asked whether approvals and permits could be “revoked or altered if new evidence came to light”.

“The concern I have is that with the mining industry, if you have approval processes in place which are very expensive, and if down the track things get changed, is there legislation for compensation?,” he said.

Mr Rodriguez said if the proponent had got approval and went through the development process, “they would be OK” and their approval would not be revoked.

He highlighted the fact the legislation was in place for people to use in case they were found to have worked on land with Aboriginal cultural heritage, and going through the process and due diligence could be used as a defence.

Mr Rodriguez admitted some guidelines still had not been released two weeks out of the July 1 deadline, including a directory of heritage that was currently known and whether surveys which had previously been conducted could be used to bypass the legislation.

“It’s been a tough process, I do apologise for that and we’ve been working frantically trying to develop a whole new regime,” he said.

Mr Rodriguez said the new Act would provide an approval process that would be dependent on the type and level of activity, which differed from the blanket approach the former Act had.

“Unfortunately, for land users there is a lot more heritage than government is aware of and that’s where it gets difficult for a lot of people because anybody wants to find out if heritage exists or not, they have to have the conversation or to do the survey and I understand that can be costly as well,” he said.

Many members of the public expressed their frustration that there was no existing directory which compiled every survey which had been conducted to use as a database for Aboriginal cultural heritage sites.

Mr Rodriguez said surveys were conducted for a specific purpose in mind and it was up to the proponent to make sure they were fit for purpose for their intended activities.

An attendee asked whether there was a compulsion for mining companies and native title groups to provide all survey reports to the department, and he replied there was not because it was not in the legislation.

Mr Rodriguez clarified that a survey was linked to the land and not the owner of the land, meaning if a survey had been done on a particular tenement, it could be used by someone else who used the land for a similar purpose.

He said there was flexibility in the legislation, which could be amended in five years if things were not working, or if something was seriously wrong.

A member of the public asked Mr Rodriguez what would constitute “a red flag” leading to a change in legislation.

“I would consider two things, one that Aboriginal heritage that should be protected isn’t being protected and, two, that the State economy isn’t going as it should as well. They are things that we are trying to balance. We really want to protect heritage, we don’t to stop development and we’re trying to find the balance,” he said.

Shadow Lands Minister Neil Thomson attended the event and told the Kalgoorlie Miner he believed people would walk out of the meeting none the wiser.

“I’ve never seen such a chaotic and ill-prepared piece of policy implementation that has such wide-ranging impacts on the community, and particularly on small business, I think that’s the part that really bothers me, I do feel a degree of sadness, watching those small operators, those prospectors and how they’re going to be impacted,” he said.

“They need to apply for permits on the first of July, we don’t have a system in place, we don’t have guidelines in place. The public servant here wasn’t able to answer all the questions that were put to him.”