Posted on June 18, 2023

Furious WA Farmers Fear Sweeping New Aboriginal Cultural Heritage Laws Will ‘Hold Us to Ransom’

Frank Chung,, June 15, 2023

Farmers in Western Australia are furious about sweeping new cultural heritage laws that will require them to pay an Aboriginal consultant up to $160 an hour to obtain permits to do anything on their land that might disturb more than 50 centimetres of soil.

Locals have warned that the Aboriginal Cultural Heritage Act 2021, which comes into effect on July 1, could bring economic activity to a halt while empowering a vast new layer of bureaucracy to “hold businesses to ransom” with costly red tape.

The key change under the new Act is the establishment of Local Aboriginal Cultural Heritage Services, or LACHS, which will be responsible for determining whether an activity will cause “harm” to cultural heritage.

Under a complex three-tiered system, anyone on more than 1100 square metres of land will be required to apply for a permit from their LACHS before carrying out certain activities, such as digging fences, planting trees or clearing tracks.

Penalties for damaging a cultural heritage site range from $25,000 to $1 million for individuals and $250,000 to $10 million for corporations, as well as jail time.

The state government has defended the changes, saying it comes after years of “extensive consultation”.

But WA Farmers president John Hassell said landowners feared the “open-ended” system could be abused.

“There wouldn’t be a grower in the state that doesn’t want to protect Aboriginal cultural heritage,” he said.

“The challenge we’ve got is you can see cultural heritage when it’s a burial site or meeting place, but you can’t see spiritual stuff — that is subject to change. You can’t do a survey on your place and have it marked out forever after because someone can come along later and say this is a spiritual place.”

Mr Hassell said people were “really worried” that they could carry out normal work on their property and later be deemed to have “damaged something that’s not able to be seen”.

Three-tier system

So-called tier one activities do not require a permit but the landowner must take steps to “avoid or minimise harm”.

But any maintenance or demolition that involves removing more than four kilograms of material, disturbing more than 10 square metres of ground or excavating to a depth of more than 50 centimetres may require a permit from the LACHS.

Tier two allows for up to 20 kilograms of material, disturbing up to 200 square metres of ground or excavating to a depth of one metre, while tier three includes activities such as blasting or drilling.

The landowner will be required to pay the LACHS to assess their application.

Under the fee guidelines, one senior Aboriginal consultant — defined as “an Aboriginal person who is recognised within their community as being senior and as having higher levels of knowledge, expertise, skills and authority in relation to [Aboriginal cultural heritage]” — can charge up to $160 an hour, or $1200 per day.

A LACHS chief executive can charge up to $280 an hour, while “other expert service providers” can charge up to $300 an hour.

An additional 20 per cent loading may apply to very remote areas, while costs such as travel, accommodation and meals “may be included in a fee structure”.

Mr Hassell said farmers were concerned about the potential for the scheme to become a shakedown racket.

“I think farmers are definitely worried about that being the case — continually on the grip getting approved every time they want to do something,” he said. “There are people who are worried they are going to get fined for doing things that are normal farm business.”

There are around 5200 farmers in Western Australia, running the gamut from grain and livestock to horticulture.

Mr Hassell said the new laws were introduced in a “kneejerk reaction” to the destruction of two ancient rock shelters in the Pilbara’s Juukan Gorge by mining giant Rio Tinto in 2020.

“Juukan Gorge was approved knowing full well there was [a heritage site] there in 2013, it wasn’t until blowing it up in 2020 there’s been this massive community outrage,” he said.

“The only difference is in 2013, there was 10,000 years of Australian culture here, now all of a sudden there’s 65,000 years. I don’t mind what it is as long as it’s consistent and not bulldust.”

‘Dreading the cost’

Debbie Dowden, 56, owner of the 200,000-hectare Challa Station in the state’s mid-west Murchison region, said she feared the laws would be used to “hold businesses to ransom”.

“We are dreading what the cost is going to be for our property,” she said.

“We’ve got half a million acres. We want to build 10 trackyards in the next two or three years, plus rehydration, plus 60 kilometres of fencing — do we have to get a person out for every one of those sites? The cost would be absolutely prohibitive. It’s like they could hold us to ransom, it really is. We’ve got no comeback, no way of saying the Woggle Breath or whatever does not exist here — and nobody can prove it. It sounds like there’s so much room for corruption, it’s just horrifying.”

Ms Dowden said the new laws would effectively force them to take a two-year “holiday”.

“It’s going to really put a halt to a lot of agriculture and mining and economic activity in WA,” she said.

“The way it’s being rolled out is a mess. There’s nothing ready. On July 1, if we want to make an application to try get a clearance, the website’s not ready, the LACHS are not set up, it’s really going to stop everything happening unless people are willing to break the law. We’re pretty much going to have to stop business for an undetermined period of time while we wait for this huge big mess to get sorted out.”

Part of the problem, she said, is a lack of clarity on the regulations.

“We’ve got a big fencing project we want to do, we’ve got 60 kilometres of boundary fencing to replace — apparently if you’re replacing like-for-like you’re OK, but do they call a steel fence with star pickets the same as a wooden fence? We don’t know that yet,” she said.

“We’ve also got some really important rehabilitation areas, we’ve got a state grant for rehabilitation, planting some native seeds, and a virtual fencing project, that involves putting towers in the ground — this is all going to come to a halt. Even to do some mechanical rehabilitation like putting in some ponding banks, because we’re disturbing soil more than 50 centimetres we will need a cultural heritage clearance to do that.”

Ms Dowden said the irony was that her family had a better understanding of the Aboriginal heritage sites on the property than anyone coming from outside.

“My husband’s family took up the land in the 1880s, we have a really strong connection to the land as well,” she said.

“We’ve been on the property for five generations. We know exactly where there’s any cultural heritage, we treat that like hallowed ground, we would never disturb it. Any of the LACHS coming on, they’d have to ask us where those sites are — it’s crazy. We might be having to deal with people who are 400 kilometres away rather than the people in our town. We’ve had a good relationship with our first nations people for years, worked alongside them, employed them. It’s really disrespectful [to them].”

Laws ‘slammed through’

Tony Seabrook, president of the Pastoralists and Graziers Association of WA, said many people were “angry” about the laws — which he called “racist and race-based” — being “slammed though parliament” by the Labor government without “any serious discussion or amendments”.

“I live on freehold land, my family have been here for five generations, we care for our land,” he said.

“I feel incensed that all of a sudden this level of bureaucracy is being slammed over my operation to the point where I have to get permission to do things I want to do. I actually have to reach out to a LACHS to get someone to come out here and tell me whether what I am going to do will impinge upon his culture or traditional beliefs. I’m outraged that should happen.”

The person may “not even be from my patch” or “have the faintest idea what might be on my property”.

“This guy is going to charge me from the minute he leaves his office in town to when he gets back, I may even be obliged to pay for travel and accommodation — there’s no end to it,” he said. “The minimal fee is $80 an hour but it can run up to $450 an hour, they will determine the level. The power vested in these groups is amazing.”

Mr Seabrook, who is on 1600 hectares near York, about an hour-and-a-half east of Perth, agreed with Ms Dowden that the lack of any mechanism to challenge determinations was a major concern.

“It can be the landscape, it can be a rock formation, it can be a creek — I can’t test that,” he said.

“I’ve got no issues if it’s wall paintings, rock art or whatever, that’s simple, but the nebulous way in which issues we may be confronted with are described is bloody terrifying. I’m 73, I’ve been here all my life. My great-grandfather cleared and settled on this place, we’ve walked every single inch of it. There’s nothing here that would be deemed a cultural site — but if they start throwing in rivers, creeks and landscapes, I’m stuffed.”

The WA government is refusing to delay the commencement of the new regulations in two weeks’ time despite widespread uproar from the farming and pastoralist community.

Local Indigenous communities are also reportedly not happy about the rushed implementation and lack of funding for LACHS.

Calls to delay start

An e-petition to state parliament calling for the laws to be delayed for at least six months has attracted nearly 17,000 signatures in less than a week.

The petition, sponsored by Mr Seabrook and Liberal MLC Neil Thomson, states that the “incomplete nature of the implementation” of the new laws is “imposing an extreme level of uncertainty on Western Australian landowners, business owners and individuals”.

“The Act will create a new and unique and untested approvals system for which there is no capacity at this time to seek approvals online, meaning businesses, such as pastoralists, farmers, prospectors, and those in civil construction will have to cease all works until approvals, which can only be lodged after 1 July are then processed and approved or rejected,” it says.

Sharing the petition on Facebook on Sunday, Mr Thomson posted a map from the state government showing Aboriginal cultural heritage areas, describing the confusing graphic as “clear as mud”.

“The people of WA demand more information,” he wrote.

“The people demand more consultation. The people of WA demand systems that are clear and processes that make sense. Sign urgent petition calling on the Cook government to delay the implementation of these laws for six months while they explain themselves and make some common sense changes.”

On Monday, 550 people turned up to Esperance Civic Centre for a packed “standing room only” information session held by the Department of Planning, Lands and Heritage.

Roe MLA Peter Rundle told the Countryman newspaper there was “a lot of angst” and “some fairly irate people” in the room.

“There was some fairly strong comments from the audience, and a lot of disappointment in the fact that it’s starting on the first of July … when people still don’t know how it’s going to affect their life and their livelihood,” he said.

“I spoke about the fact that the walls are closing in on our farming communities, whether it’s [changes to] Aboriginal cultural heritage, live export, demersal fishing, forestry, or firearms.”

Government pushing ahead

A spokesman for WA Aboriginal Affairs Minister Tony Buti told the National Indigenous Times this week the state government had no plans to delay the implementation.

“It has been unlawful to harm Aboriginal cultural heritage in Western Australia for more than 50 years, since 1972 — and that will not change,” the spokesman said.

“What the new Act does is to ensure there is far more direct consultation with Aboriginal people on the preservation of Aboriginal cultural heritage. These reforms follow more than five years of extensive consultation. Input from more than 1000 people who attended more than 90 workshops held across metropolitan, regional and remote areas last year has informed the documents. This is in addition to more than 220 submissions and a broad range of direct feedback received from engagement with traditional owners, Aboriginal people, landowners and industry representatives.”

The spokesman said that under the new laws, “activities that won’t impact Aboriginal cultural heritage will impose no additional obligations for landowners” and that an exemption would apply for all residential properties under 1100 square metres.

He stressed exemptions also apply for maintenance and “like-for-like” activities.

“For example, a farmer planting a crop, running livestock or replacing a fence or other existing infrastructure will be exempt and not require approval,” he said.

“Existing mining activities and maintenance of water, electricity and other property infrastructure will all be exempt and will not require approval. However, where activities may impact Aboriginal cultural heritage, a permit or management plan may be required. Local Aboriginal Cultural Heritage Services — or LACHS — will be designated as the key point of contact with local expertise. More than 20 organisations have applied for grant funding and the government is working with eligible organisations to support their designation.”