The cheap and easy way to gain diplomatic influence can cost individuals and vulnerable groups dearly
Cultural heritage Memoranda of Understanding are good for diplomacy but can damage the rights of citizens
As anyone from the art market involved in the international world of cultural heritage will know, dealers, auction houses, buyers and sellers have long been the unjustified targets of governments, NGOs and law enforcement.
The message has been that the looting and trafficking of cultural property from vulnerable nations – many of whom are in an almost permanent state of crisis or war – is funding terrorism. Stolen items smuggled to Western markets lead to a flow of cash in the other direction to pay for bombs and bullets, they argue.
The problem is that despite innumerable research projects, studies and other initiatives to show this over the past 20 years and more, evidence of the art market’s role in this is so thin on the ground as to be all but non-existent.
Independent studies, such as the ground-breaking RAND Corporation report of 2020, state that open source evidence clearly demonstrates that the antiquities market could not possibly sustain the billion-dollar level of international crime it is accused of fomenting.
This has not prevented bodies like the European Union, the United States Government and others competing for influence in strategically important countries like Egypt, Iraq and Syria from introducing proposal after proposal – so numerous that they seem to be falling over each other for precedence – to tackle the perceived problem.
Campaigner highlighting injustice
Collector and cultural property lawyer Peter Tompa has been at the vanguard in highlighting abuses of power and influence when it comes to policy in this field.
His latest article, published by Cultural Property News, shows how the US State Department has been harnessing bilateral agreements (Memoranda of Understanding) involving works of art and ancient artefacts to curry favour in geopolitics. In doing so, it is acting against the will of Congress and against the interests of private citizens, including vulnerable ethnic and religious groups, he believes.
At the heart of the problem is the fact that MoUs effectively reverse the burden of proof over the ownership of cultural property at the point of import; you’re guilty until deemed innocent. Importers to the United States must secure a current licence from the source country covered by the MoU confirming that the imported item in question was originally exported legally from there, whenever that might have been – and it could have been centuries ago.
So, this would apply to a Roman vase that could have left Italy during the 18th century, having been purchased by a wealthy young man on the Grand Tour, and has since changed hands and moved countries numerous times. How likely is it that the current importer would hold paperwork from that original sale and export that would convince the Italian authorities to issue such a licence? But that is what Article 1 of theMoU with Italy stipulates if Customs are not to seize the vase and send it back to Italy.
Similar agreements are in place with 30 other nations, from China to Yemen.
Tompa has previously highlighted the fact that MoUs can also deprive vulnerable minority groups, such as the expelled Jews of Libya, of their moral and legal rights in reclaiming their cultural patrimony. Instead, under the terms of the MoU, objects are returned to these peoples’ oppressors in the states from which they have been expelled or subjugated.
So, how can the State Department justify this rapid spread of these agreements?
Lack of funding for archaeologists has forced many of them to earn a living doing something else, Tompa notes. “Thanks to government largess, however, lucrative new opportunities have arisen for a select few archaeologists working with State Department bureaucrats to help justify cultural property Memorandums of Understanding (MoUs) or “emergency import restrictions.”
‘Jihad against private ownership’
For many, this is an easy choice to make: “Not surprisingly, such work often draws those most committed to the view that cultural artifacts should be clawed back from U.S. collectors and museums for the benefit of countries that have been victimized in the past by Western colonialism. Most collectors, dealers and museum curators have no idea about all the State Department money that is funding this jihad against the private ownership of cultural goods in the U.S.”
Tompa looks at who is running what he describes as a “cottage industry”.
“The U.S. State Department Bureau of Educational and Cultural Affairs (ECA) and its Cultural Heritage Center have done more than anyone to grow this new cottage industry through grants and contracts as part of their ‘soft power’ efforts that seek to make hostile third world governments ‘like us more’,” he writes.
He also explains how the State Department circumvents restrictions imposed by Congress on the former’s ability to exploit MoUs for its own ends.
As always, following the money provides a clearer picture. The State Department needs better evidence of looting and trafficking to justify MoUs. It also needs to show that recipient source countries have appropriate controls in place to protect their cultural patrimony.
Tompa notes that critics have asked how much of an incentive those being funded have to come up with what the State Department wants. He describes the long-established American Society of Overseas Research (ASOR) as a major grant recipient and “evidence maker” for some of the most difficult to justify MoUs and cites examples of how those receiving hundreds of thousands of dollars in funding may be creating false narratives to suit the State Department’s purposes.
Tompa provides several examples of concerning behaviour, in one case citing an archaeologist associated with ASOR, working under a $600,000 State Department contract, who was identified as the source for a widely reported false claim that the ISIS terror group’s profits from antiquities looting were “second only to the revenue the group derives from illicit oil sales”.
Where is the media on this?
This is explosive stuff and a potentially dream investigation for any curious journalist worth their salt, involving, as it does, vast sums of money, Washington insiders and international policy that favours countries with questionable human rights records. So far, though, both the mainstream and leading art market media outlets have remained silent, leaving experts likes Tompa to do all the heavy lifting. This is curious when one considers how frequently and keenly the widespread media reports any example (alleged or actual) of crime involving cultural property.
The harnessing of such bilateral agreements for geopolitical gain – with art traders and private citizens paying the price – has long been a subject of concern. Could fear among journalists of falling out with influential advocacy groups who act as regular story sources be the reason for their apparent lack of interest?
This hands-off approach from hacks may be emboldening the State department. Tompa writes: “The State Department acting as both decision maker and facilitator for cultural property MoUs raises other concerns. More recently, the State Department has dropped all pretense of following the intent of the CPIA (Cultural Property Implementation Act) by showering additional funding on archaeologists to facilitate new and renewed cultural property MoUs.”
What we are seeing on a widespread basis is not the development of evidence-based policy, but policy-based evidence as the stakes rise among MENA nations and in the Far East, as well as in Central and South America. Security, diplomatic influence and other issues may be the real concerns, but cultural heritage Memoranda of Understanding are the currency by which a favourable position can easily and inexpensively be achieved. While that is understandable, the conditions under which they are being issued raise serious ethical, moral – and in the case of the U.S. Constitutional – questions, particularly about the rights of citizens and vulnerable groups, as well as fundamental principles of law.
Let’s not forget that the same U.S. citizens having their goods seized are also unwittingly funding this unjust process.So far, no one in authority has made any serious challenge to this process. It is about time that changed.
Assistant District Attorney Matthew Bogdanos has been head of Manhattan’s Antiquities Trafficking Unit (ATU) since 2018. He has understood since at least 2011 – and probably earlier – that claims of a multi-billion dollar market in looted and trafficked antiquities have no basis in fact. This is evident from the opinion piece he wrote for CNN, published on July 7, 2011. In that piece he wrote:
“One of the main problems with looting is that if a site is undiscovered, you simply don’t know what you don’t know. Interpol estimates that the illicit antiquities trade is worth billions of dollars. My question is: How do they know that?
“If it is illegal and, therefore, a clandestine trade, how do you know the dollar amount? It is similar to the drugs trade, you guess from the amount you’re able to seize. It is not a scientific approach, nor one I am comfortable using in assessing the total value of the worldwide trade in illegal antiquities.”
These two paragraphs additionally confirm that Bogdanos is guessing when he associates the scale and importance of antiquities trafficking with that of drugs and weapons. He even tells us that that is exactly what he is doing and that he is not comfortable with it.
If, as he argues, that Interpol – and so anyone else – cannot possibly know the value of the illicit market, it is a logical consequence that they also cannot claim that it is of equal standing in scale and scope to markets in trafficked drugs or weapons. These are simply false claims about antiquities.
Further evidence to show claims are false
Little has changed regarding such data since 2011, except that since 2015, the World Customs Organisation (WCO) has produced annual Illicit Trade Reports assessing the size and comparative extent of risk categories, including cultural heritage. Those reports include information registered via the Customs Enforcement Network (CEN) and so are not comprehensive. However, the figures for cultural heritage, of which antiquities form a miniscule part, are so small compared with other risk categories, including drugs, counterfeit goods, tax evasion and weapons, that it is clear there is no similarity at all in scale or scope between drugs and weapons trafficking, on the one hand, and antiquities trafficking on the other.
Further, the 2020 RAND Corporation report, an independent study into open source data on the issue by what is arguably the United States’ most trusted research organisation, concluded that available evidence showed that a multi-billion dollar illicit global market in antiquities was simply unsustainable: “Simply put, while we cannot claim to measure the size of the illicit market, we can show that observable market channels are too small to act as conduits for a billion-dollar-a-year illicit trade.”
That report also concluded that what had become widespread claims of the trade in illicit antiquities being linked to those in drugs and weapons could be traced back to Bogdanos as the original source.
Twelve years on from publicly declaring that the multi-billion dollar claim had no basis in fact, and that the link to drugs and weapons claim was pure guesswork, we find that the Manhattan District Attorney’s office is still promoting the first claim in its media releases.
False claim repeated more than once in recent media releases
On March 21, 2023, under the headline D.A, Bragg Returns 29 Antiquities to Greece, the official media release from the D.A.’s office included the following statement: “Antiquities trafficking is a multi-billion-dollar business with looters and smugglers turning a profit at the expense of cultural heritage…”. The speaker was Special Agent in Charge for HSI New York Ivan J. Arvelo.
The same quote from Arvelo had been included in the D.A.’s earlier official media release on January 5, 2023, regarding the return of an artefact to the Palestinian authority. It is not clear whether Arvelo made his comment during the ceremony at Bethlehem, when Bogdanos was standing next to him, or afterwards, but it remained uncorrected in both releases.
It is hard to believe that in such a sensitive area of crime fighting official releases from the District Attorney’s office would not be scrutinised and signed off by its leading officer prior to release. If Bogdanos is not screening official releases, it raises the question as to why not. If he is, why is he not correcting what at best can be called misinformation that he is well aware of prior to their issue, or at least doing so once they have been released?
He has long known about how controversial and false these claims about antiquities are and, as in his 2011 opinion piece for CNN, expressed his discomfort with their use. Such oversight is crucial to the ATU’s credibility.
If we cannot rely on the D.A.’s office to issue accurate information relating to this highly sensitive area, how can we have confidence in the rest of what it has to tell us on this subject?
 See Measuring the international trade in antiquities, page 70 AND Issues with the Current Approach for Assessing the Antiquities Market to Terrorist Funding, page 12 AND Summary, page 84-85 AND Findings, page xii
 See Antiquities Trafficking Using Telegram, pages 49-50
How do those buying antiquities protect themselves and the public?
Anyone buying items online needs to ensure that what they are paying for is genuine and that the seller has the right to sell them. That’s true for ordinary household goods and consumer wares, and especially true when it comes to the trade in antiquities.
The two trade associations supporting the Antiquities Forum, the UK-based Antiquities Dealers’ Association (ADA) and the International Association of Dealers in Ancient Art (IADAA), have long pioneered policy on this. Having a clear and effective crime-prevention policy is the best way of safeguarding their members and their members’ reputation, as well as boosting confidence in the trade among the public. It is also essential for preventing ancient artefacts being exploited by the unscrupulous.
In doing this, the two essential considerations are Provenance and Due Diligence. But what do they mean?
Provenance is the history of an object, tracing its ownership back as far as possible to ensure that it remains an item that can legitimately be traded. The ADA sets out a detailed summary of the different types of provenance an object can have, what that means and why it is important, on this website.
Due diligence, meanwhile, is the process which trade professionals undertake to ensure that the items they are handling are authentic and can be traded legitimately. It is important to remember that in the event of any legal dispute, the effectiveness of the due diligence undertaken by those responsible will be taken into account.
Effective due diligence is a vital part of protecting traders’ good reputations, which are essential for success in business.
What the associations have to say
The ADA sets out the process of due diligence for its members as follows:
Before offering property for sale, members must be satisfied that they have conducted the level of due diligence required to establish that the property they are handling is authentic and that there are no known legal obstacles to selling and passing title.
The ADA requires members to adhere to the relevant domestic and international laws that govern the markets for archaeological and ancient property and, in many respects, ADA standards go beyond the legal requirements.
If members are not certain as to the laws of a particular jurisdiction, or their application to a specific item, please consult the ADA Council for advice.
Members must act in good faith throughout all transactions.
Members should record each transaction with diligence and keep records for a minimum of 6 years.
Where a member is buying from another dealer or an auction house then the member should record the transaction and note the provenance as provided. Some items will have more detailed provenance than others.
Where a member is buying from a person other than a dealer or an auction house then the member should establish the identity of the vendor. Unless the vendor is well known to the dealer, where an item is worth over £3,000 then member should request photographic identification and if practical take and retain a copy of it. Members should obtain in writing:
- The name and address of the vendor;
- A warranty that the vendor has good title to the objects;
- Confirmation of where, when and how the vendor obtained the objects, as can be provided by the vendor;
- Where the vendor acquired the objects outside the United Kingdom, confirmation that the item has been exported or imported in conformity with local laws and where available evidence of that.
In addition, wherever possible members should arrange payment by a method that leaves an audit.
Members undertake to carry out due diligence, as set out under this Code, to ensure, as far as they are able, that objects in which they trade were not stolen from excavations, architectural monuments, public institutions or private property and are lawfully on the market for sale.
Members will make all reasonable enquiries to ascertain earlier ownership history of any object they are considering purchasing, mindful that the illicit removal of archaeological objects from their original context is damaging to our knowledge and understanding of the past.
Members have a duty to record and preserve relevant prior ownership history of an object along with any evidence supplied.
Stolen Art Databases
“It is a condition of membership that all goods acquired at the purchase price of £3,000 or more be checked with an appropriate stolen art database, unless they have already been so checked.’
No system is perfect and many items have very little documented information establishing a detailed history going back decades or longer. This does not necessarily mean that there is anything wrong as there can be a number of valid reasons for this: for instance, paperwork may have been lost or not kept – in the past, such information was not deemed important, as it is today.
As can be seen from the due diligence requirements set out above, however, a higher level of checking is demanded for higher value items.
Market professionals also tend to have effective antennae for picking up ‘red flags’. Remember, just like anyone else, they do not want to hand over ready money for something that may later turn out to be a problem.
Additional things they look out for include items that are significantly under-priced, as this may point to someone handling stolen goods trying to offload them. Another thing to check is how credible the seller is as a source of the material being offered.
The ADA and IADAA have both been proactive in developing due diligence over the years. Indeed, UNESCO’s code of conduct in this field was based on the earlier code published by IADAA.
Both the ADA and IADAA provide further advice on their websites at www.theada.co.uk and www.iadaa.org
Even when an antiquities dealer proves to be the hero of the hour, the media and others try to blame the market instead of those responsible
Much of the past ten days has been taken up with the thefts scandal at the British Museum. A senior curator sacked, the director of the museum quitting early, and the deputy director stepping back from duties pending an investigation.
Covered in disgrace, senior executives made their position worse by attempting to divert blame to the man who had blown the whistle in the first place, even though he had spent several years trying to get them to take him seriously.
Why did they think they might get away with it? Perhaps because Dr Ittai Gradel, an academic and collector of antiquities, is also a dealer. And perhaps, too, because history shows us that the media are all too ready to believe the worst of the trade even when confronted by evidence to the contrary.
BM director Dr Hartwig Fischer was quoted as follows: “When allegations were brought to us in 2021, we took them incredibly seriously, and immediately set up an investigation.
“Concerns were only raised about a small number of items, and our investigation concluded that those items were all accounted for.
“We now have reason to believe that the individual who raised concerns had many more items in his possession, and it’s frustrating that that was not revealed to us as it would have aided our investigations.”
Dismissing these claims as “lies”, Dr Gradel accused the director of “shooting the messenger”: “They never even contacted me. I was waiting the whole time for them to ask me to give testimony. Why can’t they just own up to their responsibility?”
Excoriating censure by the Telegraph
Fortunately The Telegraph, which had secured the scoop on the story, had conducted a thorough investigation of the email trail between Dr Gradel and the BM, so it knew who was telling the truth. It went so far as to publish a leader article on August 25 censuring the BM management: “Although the British Museum ostensibly opened an investigation, it reached a swift conclusion that nothing untoward had happened. Now we know that was not the case… the whistleblower gave the British Museum the opportunity to stem the disappearances without publicity. For it to supposedly take no action was a dereliction of duty and has made it harder to argue against demands for the repatriation of important parts of the collection such as the Elgin Marbles.”
Most damningly, the Telegraph concluded: “Why are those accused of ignoring warnings still in post? If they refuse to resign then George Osborne, the UK’s former chief finance minister and now museum’s chairman, should dismiss them for tarnishing the reputation of a great institution.”
While Dr Fischer’s crisis management proved a disaster for him and the museum, as one of the two most senior government ministers in the land during the David Cameron premiership, Mr Osborne is a seasoned politician with a much more authoritative grasp on the playbook of public opinion and reacted accordingly to limit the damage. He revealed that some items had been recovered, calling it “a silver lining to a dark cloud”.
In a BBC interview, Mr Osborne also revealed what he thought had gone wrong in the failure to address Dr Gradel’s concerns promptly: “…was there some potential groupthink in the museum at the time, at the very top of the museum, that just couldn’t believe that an insider was stealing things, couldn’t believe that one of the members of staff were doing this? Yes, that’s very possible.”
IADAA and ADA adviser Ivan Macquisten was quoted in The Times, explaining the importance of the trade’s role in crime prevention, as the media turned its attention to the unwelcome challenges that the possible sale of so many stolen items might pose.
It became clear that many of the missing items had never been properly catalogued or photographed, meaning they will probably never be identified or restored to the British Museum’s collection. Nonetheless, the most strenuous efforts must be made to recover as much as possible.
Trade associations launch media campaign over crisis
Both IADAA and the ADA launched a media campaign on August 25 calling on the British Museum to publish a full list of the missing objects, together with photographs, prominently on its website as a matter of urgency so that the trade and others can help in their safe recovery. Mr Osborne has said that only the police can publish a list on the Interpol website and that the BM is working with the Art Loss Register, adding that simply publishing the list itself might not bring the best response. This was unconvincing. The Art Loss Register is unlikely to focus on less important items among those stolen, and regardless of what other measures the BM is taking, it should also publish the list prominently on its website to ensure the greatest public awareness in the quest for recovery. If that is too much to ask, the least it could do is to provide the correct information to dealers and auction houses for enhanced due diligence.
Despite it being a member of the antiquities trade who devoted four years to uncovering the scandal and reporting it, some commentators have used the scandal to attack the trade.
Foremost of these is anti-trade campaigner Morgan Belzic, doctor in archaeology at the French Archaeological Mission in Libya, who reportedly told classicist Daisy Dunn, also writing for The Telegraph: “The London art market is one of the most involved in antiquities theft and looting… It can move objects very easily and quickly out of the country. It’s one of the least controlled markets in the world. There’s a lot of complacency, a lot of negligence and, of course, some dealers are directly involved with the illegal trade.”
Belzic stuck the knife in further with bogus statistics: “I’d estimate the legal art and antiquities market is only 20 per cent of the total trade,” he said. “It’s impossible to give an accurate number, so little research has been done in the field, but the illegal trade is certainly in the billions [of pounds].”
If it is impossible to give an accurate number, how can he estimate that the legal market is only 20 per cent of the total trade?
He is clearly also unaware of the recently published Cambridge University paper by Dr Neil Brodie and Assistant Professor Donna Yates, The illicit trade in antiquities is not the world’s third largest illicit trade: a critical evaluation of a factoid, or the 2020 RAND report, the latter of which demonstrates convincingly why any illicit trade in antiquities could not be worth billions of dollars – a logical point earlier noted by the ADA’s and IADAA’s own analysis.
Hypocritical approach of trade’s critics
Belzic follows the pattern of many critics of the trade by demanding unquestionable documented provenance for their claims over artefacts, while considering himself free to make wild, inaccurate and damaging claims about the trade without offering any provenance to support what he has to say. He makes a very serious allegation, accusing London dealers of criminal activity. If he has proof of this, why does he not name them? His careless approach is irresponsible.
The additional problem with this is that it is such critics, spreading the bogus claims over an illicit trade worth billions of pounds, who themselves risk encouraging further looting by those who think they are going to make a fortune from such thefts when the reality is otherwise.
One of the more important aspects of this whole sorry saga is the spotlight it has thrown on the politicisation of the museum sector and how it is run. In a letter to The Times on August 25, the former curator of Salisbury Museum, Peter Saunders, agreed with an earlier comment piece decrying the way that museums were losing their way: “…museums have too long felt pressured by funders and politicians to focus on flavour-of-the-month matters such as decolonisation, equality, diversity, restitution and climate change, to the detriment of basic, old-fashioned curatorship. Cataloguing and security are unglamorous activities. Yet might a national scheme to mark all collections with DNA identifiers to deter theft and aid police recovery of stolen artefacts not prove attractive to sponsors? It would surely help prevent the sort of ‘plundering’ suffered by the British Museum.”
The scandal has also led to other issues coming to light. In an August 18 article, Thefts by staff a common problem in UK museums, say experts, The Guardian reported on claims from a former London Museum employee that the sector was :”institutionally corrupt”, with the theft of items being considered “fair game”.
Even after all this, with Dr Gradel doing everyone the greatest of favours by his hard work and determination – and the museum world exposed as having a very serious institutionalised problem – elements of the media exploited the crisis to attack the trade once more.
Article full of unwarranted smears
In an article that didn’t even bother to consult anyone in the trade, on August 28 The Guardian fired a series of unprofessional and unsubstantiated smears against the market, starting with: “Close observers of the antiquities market tend to be a cynical bunch, having witnessed any number of scams, dubious practices and illicit trading.”
In what appeared to approach a defamatory line, it went on to ignore all the reasons Dr Gradel had given to explain why he had kept in contact and continued to buy from the BM thief – building a case, keeping him on the hook etc. Instead it questioned his probity: “After all, the only reason the story about the British Museum has come to light is because a Danish antiques dealer, Ittai Gradel, says he became suspicious about a dealer with whom he continued trading for several years.”
It then added to the insult with the following:
“According to Gradel, he alerted George Osborne, the museum’s chairman, after being “fobbed off” by its managers for two years. Apparently he first had doubts about one seller back in 2016, when he recognised an item he’d seen many years before at the British Museum. When he asked the seller, whom he’d been dealing with since 2014, where he came by his objects, he was told that the man’s grandfather had owned a junk shop in York between the wars.
“That’s the kind of cover story that allows both parties involved to continue with business without having to explore any more awkward questions or pay an expert to establish provenance, even though it is a dealer’s legal responsibility to do just that.
“It took Gradel a further four years before he says he realised that he had been inadvertently handling the seller’s stolen goods. And that’s when, he says, the British Museum started dragging its feet.”
Journalist did not even speak to Gradel or trade as he attacked them
This is an extensive and unfair criticism of the whistleblower by a journalist who has not even had the courtesy to speak to him – even at a time when Dr Gradel was conducting a major round of media interviews. Why not?
The article then questions whether a dealer buying from someone from the British Museum would have a duty to conduct due diligence, as though that did not happen. It is the fact that Dr Gradel did conduct such checks that led to his discovery, a fact that The Guardian ignores.
What it does do is talk extensively to the trade’s arch critic, Dr Christos Tsirogiannis, who says: “It’s a huge red flag,” agrees Tsirogiannis, “but on the other hand, how many dealers of antiquities out there are not dealing with unprovenanced objects? I don’t know anyone.”
As usual, in launching this attack on the trade, Dr Tsirogiannis ignores the reality of provenance surrounding ancient objects: that few, if any, have comprehensive documentation dating back to the point of creation or discovery because of the fact that they are so old and that either such paperwork never existed or has not survived.
If the journalist involved, Andrew Anthony, had dug a little deeper, spoken to someone from the Antiquities Dealers’ Association, or at least bothered to check the ADA website, he would have found all the illuminating answers he needed, from the association’s position on responsible collecting, through its mass of independently verifiable data to its analysis of ethics, due diligence, provenance and provenance research.
The introduction of the new Aboriginal Cultural Heritage Act 2021 in Western Australia on July 1 has proved such a disaster that it has been scrapped after little more than a month.
Announcing the withdrawal, Premier Roger Cook said: “Put simply the laws went too far, were too prescriptive, too complicated and placed unnecessary burdens on everyday Western Australian property owners.”
As the Brisbane Times concluded: “It’s hard to think of a bigger lawmaking failure in recent political history than the WA government’s impending backflip on its Aboriginal Cultural Heritage Act.”
Why is this of interest to the world of antiquities? Because it deals with the same competing priorities that cause friction between commercial and personal interests on the one hand and heritage campaigners on the other, and because it shows what can happen when you tip the balance too far in one direction.
The news that the 2021 Act would be scrapped came after fears that the legislation, which undermined personal property rights for a huge section of business, farming and the public, in favour of the cultural heritage rights of indigenous peoples, might be extended across Australia.
One example of how enforcement of the law had an immediate and stifling impact was the cancellation of civic tree-planting ceremonies after an Aboriginal land corporation demanded $2.5 million to allow them to go ahead.
WA Premier Roger Cook had come under personal attack over the measures, which he refused to delay after complaints that the law was poorly written and its likely impact unclear.
He introduced the Aboriginal Cultural Heritage Act 2021 (ACH Act) after Rio Tinto destroyed sacred rock shelters at Juukan Gorge while searching for iron ore in May 2020, despite being warned of their significance earlier. Rio Tinto later apologised, and the CEO and other senior executives later resigned over the matter.
Redefining the meaning of Cultural Heritage
Section 18 of the original 1972 Aboriginal Heritage Act, which held sway until now, provided for land owners to proceed with activities that might be severely damaging to cultural heritage interests if granted permission by the government after a review.
The new act redefined the meaning of Aboriginal cultural heritage so that it was no longer limited to places and objects but also included cultural landscapes and intangible elements, although what they might be was uncertain.
It also replaced Section 18 with far tighter restrictions on property over 1,100 sqm, with permissions to be sought via Local Cultural Aboriginal Heritage Services (LCAHS), bodies that have yet to be fully established.
Effectively the Act gave Aboriginal bodies a direct and greater say – tantamount to a veto – over what landowners could do with their land through the oversight of a new Aboriginal Cultural Heritage Council (ACHC) to whom the LCAHS report.
The type of work covered could be as simple as putting up a new fence or updating irrigation works, as well as more complex projects.
Successful applications by landowners would be issued with an ACH permit, while those of greatest concern winning that approval also had to provide a management plan before going ahead.
Even when they had complied fully with all this at their own expense, landowners risked seeing their plans cast aside if new information arose concerning heritage aspects of the site.
New law “suffocates” private property rights
Those opposed to the early introduction of the law said its statutory guidelines, published at the end of May, were not clear.
Sky News political commentator Caroline Di Russo argued the new law was much worse, saying it “suffocates” private property rights of landowners, and adding that it is “the most disproportionate and overblown response imaginable”.
Red tape and ambiguity would plague farmers and industry as they tried to comply under the threat of prosecution and even jail, Russo said. Even where permission was eventually granted, it was unclear how long the drawn-out process would take.
Despite the extended definition of Aboriginal cultural heritage, Western Australia’s planning chief, Anthony Kannis, who had ultimate responsibility for overseeing the changes, was unable to define what would be covered when asked about this in a question-and-answer session with ABC News, saying “…if there is any doubt whatsoever about the advice you’re getting, there are opportunities to consult with us as a department and raise questions with us”.
One farmer whose family had farmed land in the region for over 50 years had deliberately preserved 1,000 hectares of forest country for decades, only to be told by Mr Kannis that a decision to clear it using fire in keeping with Aboriginal tradition was a possibility if the ACH ruled in its favour. “This is about giving Aboriginal people a say, and that shouldn’t be lost in all this discussion,” he countered.
In what the Financial Review dismissed as “farcical scenes”, at a forum hosted by the Association of Mining and Exploration Companies, “one mining executive asked government officials whether planting a tree near the Swan River in Perth would require a site inspection by traditional owners and the preparation of a heritage management plan.
“The officials replied it would depend on the size of the tree.”
The estimated cost of consulting what Mr Kannis described as “knowledge holders” ranged between AUS$80 and AUS$280 per hour (≠ £42/$55) (≠ £140/$150).
However, as the Financial Review also noted, “Junior exploration companies complained of being charged upwards of $200,000 for heritage surveys in the lead up to the new laws coming into force and said the rollout had been shambolic.”
Penalties for those in breach of the law included fines that started at AUS$20,000 for moving or selling ACH objects. An individual seriously harming ACH could be fined AUS$1m, while a corporation could be fined AUS$10m, with both also risking jail terms.
Concern led to scrapping of fines for initial period
Such was the concern over this amid confusion over how the law would be interpreted that Mr Cook scrapped fines for the first 12 months of enforcement while the legislation bedded down.
The WA government dismissed calls for a review, even after a petition launched by the Pastoralists and Graziers Association demanding a six-month delay raised 27,000 signatures.
Mr Cook ruled out any delay to the new regulations, despite the widespread concern, saying: “The laws are about a simpler, fairer, like-for-like transition of the current laws already in place.”
However, reality soon struck, with the impact on mining interests, as well as farming, seen as devastating. Support for the government plummeted.
Meanwhile, having secured a cultural hegemony via the new law, Aboriginal Heritage groups are now furious at the WA government change of heart.
In all, this was a textbook case in how not to address the valid concerns of indigenous groups as they fight to protect their culture. The WA government under Roger Cook dismissed the equally valid concerns of ordinary people in protecting fundamental human rights relating to property. In turn, this infringement blighted the economy in such a way that much of it risked grinding to a halt in weeks if not days. And that would have driven a deeper wedge between the competing interests of landowners and indigenous groups.
Add to all this the predictable risk of abuse of power by heritage groups handed almost unlimited say in what landowners could do, and the government had prepared the ground for toxic levels of corruption when it came to consultancy fees.
Now Mr Cook is being forced to re-adopt the 1972 law that he had argued was problematic. Having overseen this catastrophic and avoidable policy change, his credibility in seeking to resolve the issue any time soon is in tatters, and he will be doubtless focused now on shoring up support.
His arrogance in dismissing the loud and valid concerns of farmers and others as he declared the new law “simpler, fairer, like-for-like” won’t be forgotten any time soon.
WA disaster an object lesson for law makers
The WA disaster is an object lesson for law makers across the globe when it comes to balancing commercial and private interests with the demands of heritage groups. Effective policy means a nuanced approach that takes both into account, not throwing one side to the wolves in the hope of ingratiating yourself with the other.
Failure to strike this balance despite being obliged to do so by a clear policy directive does not augur well for the European Union’s import licensing regulation (2019/880) for cultural property, due to be enforced from June 2025. The damage to the international art market, including that of the EU itself, as well as the infringement of ordinary people’s rights, is likely to be widespread if that goes ahead – and Brussels has been alerted to this this often, but continues to ignore the warnings.
Too often laws are ushered through with barely a nod at genuine scrutiny of the concerns of all stakeholders. As the Brisbane Times concluded about the WA affair: “Had there been a robust parliamentary debate the practical issues that eventually emerged may have been ironed out before the laws came into effect on July 1.”
The European Commission would do well to look closely at what has just happened in Western Australia.