Known Unknown Noongar

It seems I have been one of the few lonely voices banging the drum on what’s coming with the new cultural heritage laws, this being my forth article in the Farm Weekly on the topic in two years, (look for them on my Linked in or FaceBook) ‘Looking for a Lost Heritage’, ‘Aboriginal Culturel Heritage Act – have you got any culture’ and ‘Rent seeking disguised as sacred sites.’

Also see my article ‘The Voice will make some more equal than others’ and Peta Credlins opinion piece in The Australian ‘A modest Indigenous voice to parliament? Take a look out west to consider its far reaching consequences’.?

Putting aside my efforts to warn the WA farming commuity of what’s coming and the failure of the Opposition to do their job in calling this out, let me attempt to map out what I think will come post 1 July 2023 when the new regulations kick in.

Firstly like the passing of the Native Title Act in 1993 or the recently passed state Industrial Manslaughter laws, the reality is nothing changes overnight once new legislation kicks in.?

Native Title did not shut down the mining or pastoral industry and the industrial manslaughter laws has not seen WorkSafe employers carted off to gaol as if they were serial killers.

The reality is big changes like these are a slow burn, it takes years for the bueacrats to gear up to administer complex new laws and just as long for the lawyers to explore the potential of the lavish new bounty that has dropped into their laps.??

But given time, eventually the slow grind of the machinery of government gears up and the enforcment mechanisms come into play, at the same time the lawyers go to work through the courts to explore every avenue to extract rents from business.?

In the case of Native Title, it took at least five years before the first big cases had been heard and the mining industry had worked out that it was going to take more than landcruisers and cash to buy their way through the new approvals processes.??

The same thing will happen with the industrial manslaughter laws, most farmers have settled back into business as usual kicking the need for a safety system down the line, but fear not Work Safe is on the job, with more money and more people and will be prowling around farms soon enough.

As it stands the Department of Planning Lands and Heritage is nowhere near ready to administer the new laws, they have no electronic working approvals system ready to manage the hundreds of civil works that are ready to commence

Which means come July 1 everything from council road works, exploration drilling to the construction of new sheds, dams fences on farms will have to be put on hold or run the risk being hit with large fines and possible removal of completed works should down the track (up to 7 years) they be found to have destroyed cultural heritage.?

Even if they were ready to administer the rush of applications, none of the Indigenous Local Aboriginal Cultural Heritage Services (LACHS) are up and running, or trained to prroces applications, which means its currenlty almost imposioble to work quicky throught he approvals process.?

My guess is it will take two years for the systems to be ready to accept your payment to get heritage approval for your next infrustructure upgrade.?

In the mean time like farm safety ignore it at your peril, as should something go wrong and a human or mythical being be destroyed then expect to be dragged throught the courts.

Until then sit back and watch how quickly your local LACHS office gets set up, take note of whos running it and who are the annointed cultural knowledge holders.?Even better make sure you say close to them as sooner or later they will be kicking the dirt on your farm, passing judgement on whats there and whats not.

Not that every shire will fall under a functining LACHS, my guess is some will never get off the ground, just as some Native Title groups, after 30 years, are non existant, forcing the explorers and miners to hunt around for someone, anyone to give them approval to go ahead.?

Which is where the Department will come in, as they under the regulations will take it upon themselves to fill the gap even when none of the locals are that interested in stomping around looking for heritage sites.

In other cases a LACHS will exist, but long delays will be the norm as there will be a dispute between families of who is the right cultural knowledge holder, disputes that can drag out for years in the courts or the town square.

Don’t believe me or think its inappropriate to point it out, then go talk to the junior miners and explorers and ask them what its been like dealing with native title groups.?They have some horro stories of inefficiency.

On the other side of the equation will be the emergence of highly organsied LACHS that will base themselves in Perth and will, with their high powered lawyers, be highly efficient at milking the system and your for all its worth. Again ask the miners and they will give you horror stories fo the cost.

As to what you end up in terms of the professionalism of the LACHS or how they interrpred cultural heritage within your community be it Wudjari, Njunga or Balardong, it’s going to be luck of the draw.?

Just like we saw with the recent Tony Maddox property in Toodyay who got pinged under the old Act for upgrading for a third time his culvid over a creek running into the Avon River.?

Why him and not all the neighbours??It’s luck of the draw. ?Why now and not last time the roadway was upgraded, its luck of the draw.

If you feel lucky yourself you can always undertake your own self assessment and determine if you are disturbing the land to a Tier 1, 2 or 3 level and if what you are disturbing has any heritage value, thereby avoiding paying the local mob to tell you what you already know.

If you are certain there is no heritage (no unknowns) then you are still obliged to prove you know that there is nothing there, but how do you know if you are not supposed to know as only those in the know are allowed to know.

But get it wrong, try running the defence in court that you know there is no unknowns. You have to prove it, but how can you when some sites are not supposed to be known to anyone but the knowledge holders.

Anyone recall the Hindmarsh Bridge Controversy in South Australia and the fictional secret women’s business, if not look it up.

Self-Assessments are wrought with risks. It will take years before there is a judicial decision of what might constitute ‘reasonable and practicable’ measures that are acceptable as part of self assessments to avoid harm to cultural heritage.

In practice, a proponent will need to undertake ‘due diligence’ in advance of deciding whether to shelve out plus or minus $5000 and adopt a precautionary approach and pay to get confirmation there is nothing there or take it upon themselves to do an assessment by checking on the govt map, searching for artifacts and taking a couple of notes and photos to prove they went through the exercise.

Problem is 'proponents' must consult the government maps as part of any due diligence, but they advise that the directory may be incomplete, inaccurate or deliberately obscure, so that complete information?about the presence or absence of ACH can only be discovered by direct contact with LACHS or other knowledge holders.?

In other words you are almost forced to go to the local mob and get their sign off that there is nothing there, noting also that over time things change and heritage can move.?Again, ask the miners how common it is to find heritage where explorers want to drill, its an amazing coincidence.?

My reading is we simply don’t know how far you can go with self-assessments and we won’t until tested in court.?Hence it may be better to round up your neighbours and pay the local elders to come and map out what is and what is not important across your farms and register it.?If nothing else, it gives you a defence and a base line that hopefully won’t move with time.

So whats the take away? ?First the Opposition has failed us and they should be reminded at every opportunity and told we expect to see a policy from them which funds a state wide survey to establish the definative map of every last heritage site, once and for all.?

Secondly, the world won’t end on 1 July, but the legisaltion does exist and it’s increadibly intrusive, so like farm safety, build it into your costs and business planning, maybe map all your projects for the next decade in one hit.

Thirdly, think about getting in front of the game and organising a multiple farm survey with your neighbours. It might be cheaper to do it collectively just cull out the farm with the big rocky outcrops, creeks and the fresh water well. ?

Forth do you own reconciliation with your local mob, as they are now part of your farm future

Finally, odds on most farms will slip under the radar for the next few years, but like the Booze Bus, the Tax Man, Farm Safety and Oversized Farm Machinery on Roads, if the government decides to pour resources into hunting those who are not following the law then there is no hiding, you will be forced to comply.????