What is Section 18 of the Aboriginal Heritage Act WA and why should you know about it?
On the 24th May 2020, two sites of sacred and cultural significance to the Puutu Kunti Kurrama and Pinikura People (PKKP) of Australia’s north west were destroyed. The demolition has dominated news headlines in Australia for just over one month, but is slowly losing its momentum in the press.
The event has triggered a ripple effect for many groups of people, none more so than the Indigenous communities who are fighting to protect their land, culture and heritage. An understanding of the Aboriginal Heritage Act 1972 can answer some front facing questions about how an event of this nature can occur in Western Australia.
What is the Aboriginal Heritage Act WA and why is Section 18 important to understand?
The Aboriginal Heritage Act 1972 (the Act) is in place to protect, recognise and preserve Aboriginal sites in Western Australia. Aboriginal sites are defined by Section 5 of the Act and have been determined by the Department of Planning, Land and Heritage. To find out more about what constitutes an Aboriginal site follow this link.
Section 17 (s. 17) of the Act explains that the cause of destruction, damage or alterations to an Aboriginal site as outlined above, is a breach of the Act and therefore a criminal offence.
However, this might leave you questioning how significant alterations to Aboriginal sites have occurred in recent times when s. 17 is there to protect them. This is where Section 18 (s. 18) of the Act comes into play.
The cave in the Juukan Gorge was destroyed in May.
Simply put, if a landowner wishes to use their land in such a way that would that be in breach of s. 17, they can apply for consent to proceed with their intended land use under s. 18 of the Act.
An accepted application of s. 18 provides the land owner with legal consent to cause destruction, damage or alterations to an Aboriginal site as mentioned above, and removes the criminality which would usually exist with a breach of s. 17. It is through this part of the legislation that companies are given passes to explore and develop on natural landscapes.
Who grants Section 18 approvals?
A request for consent under s. 18 is sent to the Aboriginal Cultural Material Committee (ACMC) who assess the importance and cultural significance of a site that has been submitted. The ACMC submits this notice to the Minister with a written recommendation as to whether consent to the use of land should be given.
It is at this part of the process that Indigenous groups can create a case to protect their sites of sacred and cultural significance. Digital tools can assist with this process and help to communicate these cases in a visual way. If you need help with this, reach out to our team for advice.
However it must be noted that the Government minister has full discretion over this decision once they have received the ACMC notice and additional evidence and documentation.
What is the equivalent of the Aboriginal Heritage Act WA in other states and territories?
It is important to note that the Act and the subsequent s. 17 and s. 18 mentioned above, only apply to the laws and land of Western Australia. For more information relevant to your state or territory please see the links below.
Australian Capital Territory - Heritage Act 2004.
New South Wales - Heritage Act 1977.
Northern Territory - Aboriginal Sacred Sites Act 2003.
Queensland - Aboriginal Cultural Heritage Act 2003.
South Australia - Aboriginal Heritage Act 1988.
Tasmania - Aboriginal Relics Act 1975.
Victoria - Aboriginal Heritage Act 2006.
Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia
On Thursday 11 June 2020 The Senate referred the following inquiry to the Joint Standing Committee on Northern Australia for inquiry and report by 30 September 2020: The destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia
The committee is inviting individuals and organisations to send in their opinions and proposals in writing in the form of submissions. This inquiry is accepting submissions until 31 July 2020.
Submissions may take the form of a letter, a short document, a more substantial paper, or may even be presented in audio visual. Submissions should also be prepared to comment on at least one of the terms of reference and should be written solely for the purpose of the inquiry.
You may also choose to include facts, opinions, arguments and recommendations for action, to strengthen your submission.
There are many resources available to help you. Visit the Parliament of Australia website for more information and for guidelines to help you write your submission.
If you would like to utilise digital maps to help communicate your sacred sites and sites of cultural significance, get in touch with our team.