The Aboriginal Heritage Act 1972 & State Desecration Doctrines

1. Statutory Architecture of the Aboriginal Heritage Act 1972

Enacted by the Tonkin Labor Government, the Aboriginal Heritage Act 1972 (WA) was ostensibly introduced to protect sacred sites, archaeological deposits, and traditional cultural materials from destruction.¹ In practice, however, the Act functioned as an instrument of state-sanctioned land dispossession and corporate facilitation.² By establishing an administrative regime that vested the ultimate power to authorise site destruction exclusively in the Minister for Aboriginal Affairs, the statute prioritised mining extraction, suburban real estate expansion, and pastoral development over the religious and cultural heritage of First Nations custodians.³

2. The Aboriginal Cultural Material Committee (ACMC)

The Act established the Aboriginal Cultural Material Committee (ACMC) under section 28 to advise the Minister on site significance and preservation.⁴ However, the structural composition of the committee was heavily weighted toward state bureaucrats, anthropologists, and mining industry representatives, with First Nations cultural custodians occupying only token advisory roles.⁵ Furthermore, under section 5 of the Act, sites were subjected to narrow Eurocentric tests of significance: ancient stone arrangements, ochre mines, and burial caves were frequently dismissed by the ACMC as "archaeologically insignificant" if they lacked dense quartz debitage or European academic documentation, stripping them of statutory protection.⁶

3. Systemic Desecration: The Swan Brewery and Urban Sacred Sites

The structural bias of the Heritage Act was epitomized in the protracted battle over the Old Swan Brewery (Goonininup) on the Swan River in Perth between 1989 and 1993.⁷ Goonininup is one of the most sacred sites in Bibbullmun cosmology, intimately connected to the ancestral creation track of the Waugal.⁸ Despite unanimous anthropological evidence of the site's profound sacred significance, the Western Australian government and developer consortiums invoked the Heritage Act to authorise redevelopment.⁹ Custodians established a round-the-clock protest vigil that lasted for years, facing police harassment, mass arrests, and judicial hostility, demonstrating the state's willingness to deploy statutory machinery to desecrate sacred country.¹⁰

4. The Inadequacy of State Protection and Sovereign Stewardship

The continuous failure of the Aboriginal Heritage Act 1972 proved that settler-state legislation cannot be relied upon to protect sacred country.¹¹ The tragic destruction of the 46,000-year-old rock shelters at Juukan Gorge in the Pilbara in May 2020—legally authorised by the Minister under section 18—exposed the bankruptcy of Western Australian heritage law to the entire world.¹² Bibbullmun custodians assert that sacred country can only be protected through sovereign, community-controlled heritage governance underpinned by the international right to Free, Prior, and Informed Consent.¹³