Call him Trevor. He and his wife run a sheep-and-grain property a few hours north-east of Perth, worked by his family since the 1950s. Through June 2023 he spent three weekends finishing a boundary fence, deepening a dam and grading a firebreak — jobs he had put off for a year — because from 1 July, disturbing more than 1,100 square metres of his own ground would trigger a heritage-approval process nobody, including the department meant to explain it, seemed able to describe in plain terms. Trevor is a composite, built from the complaints WAFarmers and the Pastoralists and Graziers Association (PGA) were fielding by the thousand that winter, not a named individual. But the scramble was real, repeated on pastoral leases and Wheatbelt blocks across the state.
Five weeks after the law he had rushed to beat finally took effect, the government tore it up and apologised. What replaced it was, in substance, the 1972 Act he had lived under his whole life, patched rather than rebuilt. For Traditional Owners who had spent years pushing for the reform, the reversal landed as a second loss stacked on the one Juukan Gorge had already delivered.
What the government did
On 24 May 2020, Rio Tinto legally destroyed two 46,000-year-old rock shelters at Juukan Gorge in the Pilbara to expand an iron ore mine, acting under a consent granted under section 18 of the Aboriginal Heritage Act 1972. The shelters held a continuous record of human occupation spanning the last ice age and were, by the company's own archaeologists, among the most significant Aboriginal sites in Australia. The destruction triggered a federal parliamentary inquiry, whose October 2021 final report, A Way Forward, found the section 18 process had for decades approved the disturbance of Aboriginal heritage with almost no refusals — more than 3,300 applications had been lodged under the 1972 Act, the large majority granted (approx.) — and concluded the Act had "excessively favoured the interests of proponents" over the people whose heritage it was meant to protect.
Western Australia had actually begun reviewing the 1972 Act before Juukan Gorge, not after: then Aboriginal Affairs Minister Ben Wyatt announced a review on 9 March 2018. Juukan Gorge turned a slow-moving policy project into an urgent one. Three and a half years later, in November 2021, the McGowan government introduced the Aboriginal Cultural Heritage Bill; it passed with bipartisan support and received royal assent on 22 December 2021 as the Aboriginal Cultural Heritage Act 2021 — then took a further eighteen months to reach commencement, on 1 July 2023, just over five years after the original 2018 review began.
The new Act replaced the old single ministerial consent with a tiered permit system tied to the scale of ground disturbance, created new statutory bodies called Local Aboriginal Cultural Heritage Services (LACHS) to assess and advise on activities, and required formal management plans and, for larger works, ministerial approval for any activity disturbing more than 1,100 square metres. Detailed guidelines explaining how landholders were meant to comply were not released until April 2023, roughly three months before the Act was due to commence. A petition to WA Parliament seeking a delay to commencement drew signatures numbering in the tens of thousands (approx.). The government did not delay: the Act fully commenced on 1 July 2023.
By then WA had a new Premier. Mark McGowan resigned on 29 May 2023 and Roger Cook was sworn in on 8 June — three weeks before commencement day. Cook had been Deputy Premier when the Act was legislated in December 2021 and remained part of the government that set the 1 July start date; he was not a bystander to the decision, but he inherited the task of managing an already locked-in rollout with almost no runway of his own to fix it.
The strongest case
Two legitimate grievances, one law
The reform imperative was real. The 1972 Act had been the legal mechanism under which Juukan Gorge, and thousands of lesser-known sites before it, were lawfully destroyed; a federal inquiry, a global reputational shock to Rio Tinto and years of advocacy by Traditional Owners all pointed to the same conclusion — that a regime approving heritage destruction almost automatically could not be trusted to prevent it happening again. The 2021 Act's core ideas, genuine engagement with Traditional Owners rather than a single ministerial sign-off, an appeal right for Aboriginal parties that mirrored the one already given to developers, and a presumption that heritage should be identified before it is destroyed rather than after, were a defensible, arguably overdue, response to a failure that had just embarrassed the state on the world stage. It passed with support from both major parties in December 2021 for a reason.
The landholder compliance-burden concern was also real, not manufactured. WA has enormous areas of freehold and pastoral land sitting outside any mining tenement, farmed or grazed by families with no history of, or budget for, heritage consultants. A regime capturing any ground disturbance over 1,100 square metres, without a clear and timely explanation of who was exempt, what a survey would cost or how long an approval would take, was always going to alarm people digging dams, laying pipes or fixing fences as routine farm maintenance. PGA president Tony Seabrook put the LACHS assessment rate at roughly $150 to $450 an hour, depending on the qualifications of who attended (approx.), with no fixed turnaround time. Guidance arriving three months before a mandatory start date, for a law five years in development, was not enough runway for a sector with none of the compliance infrastructure mining companies already had.
The evidence
The compressed timeline is itself primary evidence of a process that went wrong twice. From Juukan Gorge's destruction in May 2020 to the Act's assent in December 2021 took nineteen months; from assent to commencement took a further eighteen months; and from commencement to the announcement it would be scrapped took roughly five weeks. Premier Cook announced the repeal on 8 August 2023, telling the public "the complicated regulations, the burden on landowners and the poor rollout of the new laws have been unworkable for all members of our community — and for that I am sorry," and that "we got the balance wrong." The Aboriginal Heritage Legislation Amendment and Repeal Bill was introduced the next day, 9 August; it passed the Legislative Council on 17 October and received royal assent on 24 October 2023; the amended 1972 Act took effect on 15 November 2023, less than four and a half months after the law it replaced had begun.
The Act's own record while it operated backs up the compliance complaints. In the weeks either side of 1 July 2023, the Department of Planning, Lands and Heritage was fielding a heavy volume of public inquiries about basic obligations, such as whether routine fencing or a farm shed required a survey, that the government itself later cited as evidence the rollout had failed to make the law's requirements clear. No comparable volume of complaint attended the 1972 Act's forty-nine years in force — not because that Act worked well, but because it asked almost nothing of ordinary landholders and almost everything of Aboriginal people whose heritage it rarely protected.
The critique
Two governments made the same mistake in opposite directions, five weeks apart, and both were failures of process rather than of intent.
The first failure was rushing implementation without matching support. Five years of drafting is not the same as five years of preparing the public to comply. A law reaching into ordinary farm maintenance needed guidance, worked examples and a functioning LACHS network in place well before the compliance clock started, not three months before it. Instead the government held to a fixed commencement date while its own explanatory guidelines were still being finalised, and left new statutory bodies barely established to handle assessment demand from day one. The result was foreseeable: confusion, a public petition, and a resource sector and a farm sector, not natural allies, arriving at the same conclusion — that the government had not done the groundwork its own reform needed.
The second failure was repealing with even less consultation than the government gave the introduction. A law developed over five years with Traditional Owners, industry and the community was unwound in roughly five weeks of political crisis management, the repeal bill introduced the day after the backflip was announced and passed within ten weeks. Traditional Owner organisations, including the Puutu Kunti Kurrama and Pinikura people whose country included Juukan Gorge, said they were not meaningfully consulted on the reversal and described the decision as devastating; heritage advocate Kado Muir called it an injustice. A government that spent five years insisting Aboriginal voices had to be central to heritage law reform then reversed that law faster than it takes to plan a wedding, without the standard of engagement it had demanded of itself the first time.
Both failures share a root cause worth naming plainly: the government treated genuine, reasonable stakeholder concern — first from Traditional Owners under the old regime, then from landholders under the new one — as something to be managed through announcement and timeline rather than resolved through design. It legislated a fix for the 1972 Act's proponent bias without first building the compliance pathway that would let ordinary landholders meet it, then, when that produced a backlash, discarded the fix rather than repairing the pathway. The 1972 Act, now restored with amendments including an Aboriginal Cultural Heritage Council, expanded appeal rights for Traditional Owners, a ban on "gag orders" restricting what they can say publicly, and a decade of government-funded heritage surveys in priority areas, is a better version of the old law than the one Juukan Gorge exposed. It is still the same basic architecture, built around a single section 18 ministerial consent, that a bipartisan parliamentary inquiry concluded had "excessively favoured the interests of proponents" in the first place.
There is also a cost nobody has been asked to reconcile. Landholders who paid for rushed heritage surveys, fencing and earthworks in June 2023 to beat a deadline that turned out to be temporary spent money against a law that no longer exists. The department that trained staff and stood up new statutory bodies to administer a three-tier permit system did the same. None of that spending appears as a line item anywhere in the public record; it is simply absorbed — an unrecorded cost of a reform that lasted five weeks in practice.
Five years to build a fix. Three months to explain it. Five weeks to abandon it.
Attorney General John Quigley's defence of the return to the 1972 Act, that it "performed an important role" for more than fifty years, is true and also beside the point: the same fifty years produced the section 18 approval record the federal inquiry criticised and the conditions that allowed Juukan Gorge to happen lawfully. Restoring an improved version of the law that permitted that outcome is not obviously safer than fixing the law that replaced it; it is simply the option that cost the government less political capital in August 2023.
The risk to the future
A trust deficit on both sides of the fence
Western Australia is now governed, in substance, by the same law that let Juukan Gorge happen, plus amendments its own government concedes were needed but has not been tested against a hard case. The Aboriginal Cultural Heritage Council is advisory, not a veto; the expanded appeal rights and the ban on gag orders are improvements, not a change to who holds the final decision, which remains the minister exercising a section 18-style consent power. Nothing in the current framework guarantees that a resource project of enough state significance could not still secure approval to disturb a site a Traditional Owner group opposed — the precise mechanism the federal inquiry found had already failed once. The risk is not abstract: WA's economy still runs on approvals for ground disturbance across the Pilbara and beyond, at a pace the tiered 2021 regime was explicitly designed, however clumsily, to slow down and scrutinise.
The deeper risk is to trust itself. Farmers who complied in good faith with a law that lasted five weeks have little reason to take the next reform announcement at face value. Traditional Owners who negotiated for five years, watched the result repealed in weeks without equivalent consultation, and were told the government was sorry, have even less. Any future WA government wanting to revisit Aboriginal heritage protection, and the case for revisiting it has not gone away, now carries the cost of two broken processes rather than one — a diminished capacity to run the next reform without every stakeholder assuming it, too, will not survive contact with the first sign of political pressure.