What a heritage consent actually permits

One section of a Western Australian statute shows how a lawful approval can become impossible to reverse — and why the wording of a consent matters more than the policy around it.

Pending review

A regular grid of small wooden pegs and taut string marking even squares across short grass, with two shallow scrapes opened inside separate squares. — Illustrative artwork: an archaeological survey grid of the kind set out under heritage consent. Not a facility, equipment or material connected to this project. · Illustration · Osmond Hub

The short version

A heritage consent is not a permission to be reviewed as circumstances change. Under the Western Australian statute that governed the Juukan Gorge rock shelters, ministerial consent under section 18 operated as a standing defence: nothing done in accordance with it constituted an offence, and only an owner of the land — a category the Act defines more widely than "landowner" suggests — could seek review of the decision. No power for the minister to revisit a consent when new evidence appeared is found in the subsections read for this article, which is not the same as establishing that the Act contained none. A parliamentary inquiry described the result as a fixed decision that was unable to be reversed. This is general industry reference, and describes no relationship of the publisher's.

The section, in its own words

Section 18 sat alongside section 17, which made it an offence to damage an Aboriginal site. It was the route around that offence, addressed almost entirely to the person who wanted to use the land.

It began by defining who could use it: the expression "the owner of any land", the section said, "includes a lessee from the Crown, and the holder of any mining tenement or mining privilege, or of any right or privilege under the Petroleum and Geothermal Energy Resources Act 1967, in relation to the land"(opens in a new tab). A mining tenement holder was an owner for this purpose.

The process ran through a committee to a minister. Where an owner gave notice that it required to use land for a purpose that would otherwise breach section 17, the Committee was to "form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation"(opens in a new tab). The minister then had to consider that recommendation and, "having regard to the general interest of the community", either "consent, as to all or a specified part, subject to such conditions as he may specify", or "wholly decline"(opens in a new tab).

Two further subsections decide the character of the whole instrument. On review: where "the owner of any land is aggrieved by a decision of the Minister made under subsection (3) he may apply to the State Administrative Tribunal for a review of the decision"(opens in a new tab). And on effect: where consent has been given, "nothing done by or on behalf of that person pursuant to, and in accordance with any conditions attached to, the consent constitutes an offence against this Act"(opens in a new tab).

What those two subsections do

Put them together and the shape is clear. The right of review runs to the owner only — there is no counterpart for an Aboriginal party, nor for anyone objecting to a consent that was granted. And the consent is not a licence with a currency: it is an immunity from the offence provision, with no expiry stated in the section and no power of revocation given to anyone.

That is why the usual language of approvals misleads. A permit is normally something an authority can condition, review, suspend or withdraw; this was closer to a legal finding.

A consent that cannot be revoked is not a decision that stands until revisited. It is a decision taken once, for good.

Juukan Gorge

The rock shelters at Juukan Gorge were destroyed by a blast on 24 May 2020, conducted "as part of" an "extension of the Brockman 4 iron ore mine"(opens in a new tab). The company was, the interim report records, legally "permitted to do so by the grant of a Section 18 permit approved by the Western Australian Minister in 2013 under the Aboriginal Heritage Act 1972 (WA)"(opens in a new tab). The final report puts the consent in December 2013; no source consulted here gives a day.

Between consent and blast, excavation happened. The inquiry's own title describes the caves as 46,000 years old.

The finding that matters here is about machinery, not conduct. The committee identified, among the Act's inadequacies, a failure to challenge inaccuracies in the information provided, which resulted "in a fixed decision which was unable to be reversed when further evidence about the heritage value of the site came to light"(opens in a new tab). Those are the report's words, and they are more precise than "could not be revoked" — the decision was fixed, and new evidence had no route back into it.

A second finding compounds it. The report describes agreements that required the PKKP "to cede their rights and prevented them from contesting company decisions, raising concerns, or having recourse to law to protect heritage sites"(opens in a new tab), with "gag clauses"(opens in a new tab) restricting Traditional Owners from taking legal action or voicing concerns. A further passage is attributed to the report — that the traditional owners were reminded of their "'gag' capacity under the participation agreement in an effort to prevent it from issuing a media release" — and it is in no retrieved extract of the report, so it is given here without a link. The statutory route was closed; here, so was the contractual one.

What changed, and what changed back

Western Australia replaced the 1972 Act with the Aboriginal Cultural Heritage Act 2021, which commenced on 1 July 2023 and was repealed later the same year. The state's heritage department records that an "amended Aboriginal Heritage Act 1972 came into effect on 15 November 2023"(opens in a new tab). The replacement statute had been in force for 137 days. The amended 1972 Act now carries review mechanisms, native title party protections, procedures for new information and a new statutory Aboriginal Cultural Heritage Committee — the gaps the inquiry identified. A reader told only that the law was reformed would draw the wrong conclusion about how settled such reforms are.

Consent, consultation, and the precision that gets lost

The instruments behind the phrase "free, prior and informed consent" say slightly different things, and the differences are routinely smoothed away.

The UN Declaration on the Rights of Indigenous Peoples requires, at Article 32(2), that States consult and cooperate in good faith with the peoples concerned in "order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources"(opens in a new tab). The compound phrase itself appears at Article 19, on legislative and administrative measures. Both articles address States, not companies.

ILO Convention 169 asks for something different again. Where the State retains ownership of mineral resources, governments shall "establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands"(opens in a new tab). That is a consultation duty, not a consent requirement — the distinction section 18 made concrete. Ratification is uneven: Spain ratified on 15 February 2007; Australia, whose mineral-sands industry works extensively on land subject to native title, is not among the 24 States parties.

Related