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I'm listening to the federal Juukan gorge inquiry hearings. The WA registrar of Aboriginal sites, Tanya Butler, is giving evidence. Sen Dodson is asking her about the de-registration of a huge number of sites in 2016. She doesn't seem to know what he's talking about?
Which is interesting, because there was *quite* a big court case about it in 2015. Basically, the Aborignal Cultural Materials Committee changed its definition of a sacred site, leading to a de-registration of sites from 2008-2015. https://www.theguardian.com/australia-news/2015/apr/02/landmark-wa-judgement-on-aboriginal-sacred-sites-prompts-call-for-review
The live issue is that most of the sites that were de-registered have not been re-registered.
The definitional issue was that the ACMC no longer considered ethnographic sites to be heritage sites — archeology only. Court told them to change it.
The definitional issue was that the ACMC no longer considered ethnographic sites to be heritage sites — archeology only. Court told them to change it.
Dodson's line of questioning was based on this 2016 article by Joe Dortch et al https://research-repository.uwa.edu.au/en/publications/site-watch-recent-changes-to-aboriginal-heritage-site-registratio
Siewert asks, if sites were de-registered due to a re-interpretation of s.5 of the act, and then the interpretation was changed again, how do they get back on the list?
Tanya Butler, registrar: "New information being provided to the department for a re-assessment."
Tanya Butler, registrar: "New information being provided to the department for a re-assessment."
Seiwert: "But these sites were on the list in the first place, it was just because of the the re-interpretation of the definition that they were off the list, if there was a re-re-interpretation could they go back on the list without the need for new information?"
Butler says she would have to take that on notice, but says "there is that potential though".
Canavan asks how sites get registered. "Do most of the sites come through a process associated with a development project or an industry funded heritage survey as part of their development applications?"
Butler: "That would be a majority Senator, I would say."
Butler: "That would be a majority Senator, I would say."
Canavan: "Do you see, is there any need to provide funding outside of the development process to try to more proactively look for heritage sites and identify them before a development might be on the cards?"
Butler: "I can't comment, Senator."
Butler: "I can't comment, Senator."
Warren Snowden asks how long the ACMC typically takes to consider a s.18 application.
Butler: The committee generally will consider the proposal on the day of the meeting."
She says the number of s.18s before the committee at each meeting varies — could be 3, could be 20.
Butler: The committee generally will consider the proposal on the day of the meeting."
She says the number of s.18s before the committee at each meeting varies — could be 3, could be 20.
Butler says she, the ACMC, and the broader department were not aware that traditional were subject to gag (or "non-disparagement clauses") in their agreements with mining companies, which prevented them from objecting to s.18 applications, until this year.
Snowden says he finds that "difficult to believe," if the ACMC is representative, and made up of traditional owners, which it is, that no one was aware that those kind of clauses were a common part of agreements with mining companies.
Butler says that under the current act, the "only mechanism" to get input from traditional owners is the legal requirement for procedural fairness — which basically means they write to the native title holders and invite them to provide a written submission in response.
Pat Dodson asks whether a s.18 notice has ever been altered after it was issued.
Butler: "No senator. Once a s.18 has been granted by the minister it cannot be amended unless there is a new application presented to the committee."
Butler: "No senator. Once a s.18 has been granted by the minister it cannot be amended unless there is a new application presented to the committee."
So, in this particular case, Rio Tinto got a s.18 notice to destroy the Juukan Gorge rockshelters in December 2013. The work that discovered the full significance of the site, funded by Rio, occurred in 2014. Only Rio could then re-submit a s.18 notice, or decide not to go ahead.
Just as well we've got a new act coming, eh? Provided Labor wins government again in March (probably likely given McGowan's 87% approval rating) and also provided it remains a top agenda item, despite the retirement of the person pushing the reform, Ben Wyatt.
Back to the committee:
Dodson: "So the successful applicant of the s.18 has absolute rights to do what they wish with a site once granted, is that correct?"
Butler: "That's correct, yes".
Dodson: "So the successful applicant of the s.18 has absolute rights to do what they wish with a site once granted, is that correct?"
Butler: "That's correct, yes".
