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.