Sarah Dingle: At the top of Western Australia is a treasure trove of historical, cultural, and spiritual significance.

Geoff Togo: The carvings you see out here, that's our Bible, our area, the land you're standing on is the Ngarluma-Yaburara country. You're all welcome.

Sarah Dingle: Carved into the red rocks of the Pilbara, on the Burrup Peninsula, are more than a million pieces of rock art, many of which pre-date the last Ice Age. Traditional owners call these carvings the Aboriginal Bible.

Wilfred Hicks: When you go to church you pray to the lord. We haven't got a church. We learn our people out in the bush. And all these rocks that's got carving on, we teach the children and sing the songs to them and that's how they come to learn about culture.

Sarah Dingle: The rock art on the Burrup is considered sacred, but now 'sacred' doesn't mean what it used to. Some of these petroglyphs are around 30,000 years old, and many are now desperately vulnerable. Already, thousands have been destroyed by industrial development on the Burrup Peninsula, where Wilfred Hicks is a traditional owner.

Wilfred Hicks: Our Bible is getting ripped apart, and we'll have nothing here to show them about our culture law.

Sarah Dingle: Across the state, legal protections for Aboriginal heritage sites have been quietly junked.

Today, Background Briefing reveals the inside story on how the WA government invented a set of guidelines which removed or blocked more than 1,200 sites from the Aboriginal Heritage Register.

Robin Chapple: We're suddenly finding out, yeah, 1,200 other sites have not been put on the register.

Sarah Dingle: According to the new guidelines, sites were not sacred, no matter how ancient, unless there was proof of regular religious activity there. Now the Supreme Court has found those guidelines contradicted the Aboriginal Heritage Act, and that means the WA government has effectively been breaking its own laws for the last two and a half years.

One of the first sites rejected for heritage listing under the new guideline was James Price Point, near Broome, where Woodside was keen to develop a controversial $45 billion LNG plant.

Background Briefing can reveal for the first time correspondence between the Department of Aboriginal Affairs and Woodside about whether the company was destroying a sacred site.

And we speak to one of the high-level decision-makers who resigned in protest over the new guidelines.

Michael Robinson: I couldn't be a party to making decisions based on what I'd regarded as a faulty interpretation.

Sarah Dingle: While the truth is still unravelling, now the state government is going much further. It wants to give all power for determining what is sacred, and what isn't, to a single public servant, who doesn't have to consult with anyone, including traditional owners.

Kerry Robinson: Who is this man to tell us we're not local traditional owner of our heritage? Because it's all about money, not about the country. Not about our heritage, Indigenous heritage, Marapikurrinya heritage. It's all for money. For government departments. That's all it's for.

Sarah Dingle: This week on Background Briefing: this isn't the history wars, this is the war for history.

I'm here at the mouth of Port Hedland Harbour and all around me the mangroves are interspersed with boat ramps and bridges and cranes, the marks of industry. There's a sign up on the hill behind me showing which parts of the foreshore are restricted access to the public because of the industry going on around me, and about half the foreshore is blocked off. This is very much a working harbour.

Kerry Robinson: And the river system flows into the sea, and that's how come the name is Marapikurrinya. The fresh water meet into the salt water.

Sarah Dingle: It doesn't seem like it, but Port Hedland Harbour is a sacred Aboriginal heritage site, dating back thousands of years. The traditional owners are the Marapikurrinya people, including elder Kerry Robinson.

Kerry Robinson: We live on our country. We know where we're from. We know our heritage. It's there, it's written in the carving.

Sarah Dingle: Kerry Robinson says the Rainbow Serpent is here in the living waters, or the Yintha.

Kerry Robinson: Well, Yintha means sacred site where the Rainbow Serpents are. That's our Dreaming. That's our belief. Rainwater flows into salt water and our Dreaming is a Kata-Katara, a snake, Rainbow Serpent, and surrounding areas like carvings and other heritage things that we have.

Sarah Dingle: The waters of Port Hedland Harbour are recognised as a heritage site under Western Australia's Heritage Act. Heritage listing doesn't mean industry is kept out, far from it. It just means that government approval has to be sought, and traditional owners should be consulted before developing a site. But most of the time, approval is granted anyway, and both parties have to co-exist in this fragile environment.

Kerry Robinson: So the heritage are still there. And the Yintha site has always been there for so many years. All our people died in there, they get buried there, on the sand dunes. And I am one of the persons who go there and when any mining company goes trenching around there I go and see people's burial ground, the bones.

Sarah Dingle: You make sure that they don't disrespect the burial grounds?

Kerry Robinson: That's right. And this makes me feel sad because the mining company wants to do what they want to do because they tell us there's nothing there. But we know there's something there. White man can't tell us it's nothing there. We know it's there. That's what it means for our people.

Sarah Dingle: After years of having the harbour acknowledged as a heritage site, in 2013 Kerry Robinson had a nasty surprise. BHP wanted to expand its harbour presence. So the Port Hedland Port Authority made an application to the state Department of Aboriginal Affairs, asking for permission to impact on a known Aboriginal heritage site. They received a surprising reply, saying there was no evidence there were Aboriginal heritage sites there.

Two weeks later the entire Marapikurrinya site was deleted from the Aboriginal Heritage List, without having consulted the traditional owners.

Kerry Robinson:

Kerry Robinson: We as Indigenous traditional owners of our land, we tell the truth. We don't tell lies like the government do. The government always take advantage of Indigenous people who own the land because they want to use our land and benefit out of it themselves, not the traditional local people of the area.

Sarah Dingle: When it comes to legal rights of Aboriginal title and heritage, Greg McIntyre SC is a giant. More than two decades ago, he led the team which won the Mabo case in the High Court of Australia. He immediately took a close interest in what was happening at Port Hedland Harbour.

Greg McIntyre: It was clear that something had changed in the way which the Department was dealing with the matter.

Sarah Dingle: Greg McIntyre took up the case of traditional owners in the Supreme Court, saying that the government was not following its own Aboriginal Heritage Act on sacred sites.

Greg McIntyre: What the Department had done was to create these extra words to assist, supposedly, the interpretation of the legislation. But what they'd actually done is to create guidance which was inconsistent with the legislation. And you can't ignore words in a statute and make up your own mind as to what they mean.

Sarah Dingle: Behind the scenes, within the Department of Aboriginal Affairs, something had been going very wrong for the past two and a half years. Under Section 5 of the Western Australian Aboriginal Heritage Act, a site can be listed on the state's Aboriginal Heritage Register if it is a sacred, ritual or ceremonial site. But the state drew up new guidelines to Section 5, which dramatically narrowed what was sacred, saying a sacred site had to be 'devoted to a religious use' (that is, ongoing religious activity) and not 'a place subject to mythological story, song or belief'.

Greg McIntyre says religious activity isn't the only thing which makes a place sacred.

Greg McIntyre: Many sites are important because they were created by particular creation figures. They tell stories of Dreaming tracks of important creation beings throughout creating the countryside. Now, that's quite a different concept from a place where people go and perform ceremonial or engage in ritual.

Sarah Dingle: More than 20 years after Mabo, Greg McIntyre says it was disappointing to realise what the new Section 5 guidelines meant.

Greg McIntyre: There has to be something which a whitefella can see, and that's really the basis of the argument. It's disappointing. You'd hope that we'd become a bit more sophisticated than that.

Sarah Dingle: Former Premier of Western Australia Carmen Lawrence is now the chair of the Commonwealth's Australian Heritage Council.

Carmen Lawrence: Look, anyone who has the slightest understanding of Indigenous culture must have laughed at that when they first saw it, and I'm not surprised that it was appealed against because it's really extraordinary. It's extraordinarily stupid is the only word I can use, a stupid attempt to restrict the meaning of Indigenous culture in this country.

Sarah Dingle: Instead of protecting Aboriginal heritage sites, Carmen Lawrence says the new guidelines appeared to be made to destroy them.

Carmen Lawrence: If it had come to me as a premier or a minister for Aboriginal affairs, I would have sent it back and told them that's 101, don't insult me. So I can only assume that it's advice that the government wanted to hear. I certainly don't understand why it was accepted, unless you interpret their actions as seeking to destroy Indigenous heritage with their eyes closed.

Sarah Dingle: Background Briefing has obtained internal departmental correspondence and emails between the department and resources companies, released under freedom of information. Many dated in the year leading up to the new guidelines relate to one of the mostly hotly contested resources developments of the last decade; Woodside's $45 billion proposal for an LNG plant at James Price Point.

In 2011, community opposition to James Price Point was at fever pitch, with protestors blocking road access and chaining themselves to bulldozers.

On the 6th July, compliance officers from the Department of Aboriginal Affairs received an emergency call from traditional owners, saying Woodside contractors were about to burn and then bulldoze a potential heritage site. The Department notified the police, and Woodside, and then formally wrote to Woodside two days later. It said:

Reading: Contractors purportedly working under your direction in the James Price Point development precinct may be undertaking activities in an Aboriginal site without authorisation.

Sarah Dingle: The letter requests that those activities cease.

The next week, department surveyors went out to James Price Point with a traditional owner. The surveyors filed a report saying the James Price Point precinct met all of the criteria for being an Aboriginal Heritage site under Section 5.

The Department wrote to Woodside, again asking that they cease activity, and attaching a map of the potential heritage site. In August, Woodside replied to the Deputy Director General of the Department, saying it had already been through this process with a group of traditional owners and the Department itself. It said:

Reading: There would appear to be no basis to consider there exists credible 'new information' in relation to the location.

Sarah Dingle: It said the map of the potential heritage site was 'ill-conceived and unworkable', and asked the Department to withdraw it. A few days later the Deputy Director General wrote back to Woodside:

Reading: I understand this is a challenging scenario. I acknowledge the map offered you no practical assistance in terms of assessing risk and determining a way forward, and as a consequence we would like to recall the map.

Sarah Dingle: He added it was the Aboriginal Cultural Material Committee, or ACMC, which would decide whether James Price Point was an Aboriginal heritage site. Woodside was not satisfied. In September it replied:

Reading: Woodside has no basis on which to consider that credible new site information exists in relation to a possible site anywhere.

Sarah Dingle: The company warned that 'while Woodside has no site information', that the new claim was 'unlikely to satisfy section 5'.

Section 5 was the part of the Act which defines what is sacred Aboriginal heritage, and it was about to receive a makeover.

A couple of months later, the Aboriginal Cultural Material Committee used Section 5 to decide that another site, Lake Yindarlgooda in the WA goldfields was a heritage site because it was sacred. Documents released under freedom of information show that the Aboriginal Affairs Department overturned that ACMC decision to bow to the interests of no less than 16 mining companies.

In February 2012 an internal Departmental email says:

Reading: Officers within the Heritage and Culture Branch are now receiving phone calls from mining companies with interests in the area of Lake Yindarlgooda to discuss this matter. At least one of these interest holders has requested information on how to remove the site from the Register of Aboriginal Sites.

Sarah Dingle: The Department's own chief heritage officer tells his team that because none of the 16 mining companies with an interest in Lake Yindarlgooda were allowed to have a say in whether the site was deemed sacred, the ACMC decision would be changed. Two months later the Minister for Indigenous Affairs wrote to one of the 16 mining companies, Aruma Resources, confirming that the Lake was not a sacred site. At the same time, the ACMC itself was coming under pressure to speed up decisions.

Anthropologist and whistle-blower Michael Robinson (no relation to the traditional owners of Port Hedland) was a member of the ACMC at the time.

Michael Robinson: The entire process of committee meetings had been reviewed and sped up. Committee meetings were a lot shorter, departmental officers didn't come in to give the committee briefings, which saved a lot of time, and we generally found that decisions were being made rapid-fire.

Sarah Dingle: In May 2012 traditional owners went to the Supreme Court to halt works at James Price Point, saying the approvals process was rushed and invalid. A month later the Minister for Indigenous Affairs wrote to an elder of that group reassuring him that Section 5, the part of the Act which defines what is sacred, would remain unchanged.

But in August, the chair of the Aboriginal Cultural Material Committee made a formal request to the state solicitor's office for advice on Section 5.

ACMC member Michael Robinson says he had no idea that the chair had made that request.

Michael Robinson: That's news to me, and I don't recall it being discussed at the committee. I simply don't know why he would seek that advice. There was no particular concern that legal advice needed to be sought to assist us in our tasks.

Sarah Dingle: Did it strike you as odd at the time that the Aboriginal Heritage Act had been administered for 40-odd years and there hadn't been any problems around Section 5?

Michael Robinson: Well, it did strike me as odd. I simply don't know what motivated them to seek that advice, except, as it's turned out, to try and inhibit the application of Section 5 and restrict it to smaller categories of places than was previously the case.

Sarah Dingle: The advice on what should be considered sacred came back at the start of November 2012. On the 12th of November, a document released under freedom of information shows the Minister for Aboriginal Affairs formally signing off on the Browse LNG Precinct proposal in a memo to the Environment Minister. This was before the ACMC had made its decision on whether or not the site was protected as sacred Aboriginal heritage.

The Minister for Aboriginal Affairs told Background Briefing his approval only related to the environmental assessment. Nine days later, the committee met to consider James Price Point, and was handed new guidelines on Section 5 which required proof that Aboriginal people regularly performed religious activity there.

Michael Robinson:

Michael Robinson: It drew extensively on dictionary definitions of what constituted sacredness and somehow reached the conclusion, erroneously as I believed at the time, that for something to be sacred, there had to be activity there. This came out of the blue. We were informed by the chair that as this was legal advice from the state solicitor's office, it was what was going to bind us.

Sarah Dingle: The chair instructed you that you had to follow these new guidelines?

Michael Robinson: Pretty well, yes.

Sarah Dingle: Background Briefing sought an interview with the Department of Aboriginal Affairs and the Aboriginal Cultural Material Committee but they declined.

At that first ACMC meeting with the new guidelines, the James Price Point precinct was declared not sacred and not an Aboriginal Heritage site. A week later, Woodside officially applied to build an LNG plant there.

The company has told Background Briefing it was not involved with the review or the drafting of the new Section 5 guidelines. While James Price Point was one of the first sites rejected for heritage listing under the new guidelines, it certainly wasn't the last.

ACMC member Michael Robinson was aghast at what this would mean.

Michael Robinson: It was a question of being told to apply an interpretation that from my point of view as an anthropologist didn't sit with the reality of Aboriginal cultural heritage.

Sarah Dingle: So it effectively went against your entire training and career as an anthropologist?

Michael Robinson: Absolutely.

Sarah Dingle: Michael Robinson was a highly qualified anthropologist on the Aboriginal Cultural Material Committee. Unhappy with the way things were going, Michael Robinson says he resigned.

Michael Robinson: Principally because of the effect of Section 5, the interpretation of Section 5 which was being, I thought, forced upon the committee and I couldn't be a party to making decisions based on what I'd regarded as a faulty interpretation.

Sarah Dingle: In the December 2012 meeting of the ACMC, the heritage listing of another site had come up. The Burrup Peninsula, near the mining town of Karratha, holds up to a million rock carvings, some of the oldest in the world. While pockets of the peninsula were on the state's Aboriginal heritage list, a claim had been filed by traditional owners to consider the whole of the Burrup as one continuous heritage site. Under the new Section 5 guidelines, the whole of the Burrup Peninsula was rejected for heritage listing.

Michael Robinson:

Michael Robinson: It's the richest, one of the richest rock art provinces in the world, certainly in Australia. It also has enormous mythological significance for Aboriginal people, and it has a huge historical significance as well.

Sarah Dingle: On a wet day on the Burrup Peninsula, I'm undergoing a cultural induction led by Indigenous rangers. After the rangers' welcome to country, there is a second part, not aimed at humans.

To protect us, ranger Kenny Diamond yells out to the spirits in these red rock hills.

Kenny Diamond: I sing out to the spirits out there not to harm us, follow us.

Sarah Dingle: The spirits of the Burrup Peninsula, the most densely packed rock art precinct in the world, have plenty to be angry about. The traditional owners who had the most direct connection with this land were the Yaburara people. They were decimated in what's known as the Flying Foam Massacre almost 150 years ago.

Wilfred Hicks is an elder of the Wong-goo-tt-oo group, one of several groups in this same area who are custodians of the Burrup Peninsula.

Wilfred Hicks: I was born at Karratha station land, which is…there's a little tree out there stands today. That's where my mother gave me birth there. Anyway, back to the reason why I'm here today is to try and get the Burrup back on the register.

Sarah Dingle: I'm interviewing Wilfred in the small town of Dampier, on the Burrup Peninsula. We're in remote Australia but industry is everywhere. Over the road there's an iron ore train, smoke stacks and an industrial plant. And all around us, even on the rocks by the side of the road, is ancient rock art.

Wilfred Hicks: Just straight out from the front of the building here, you walk around there, you will find rock arts. So all behind all these buildings where the fence line is, well, those rock arts are still there. A lot of them. Anyone can come in here with a bulldozer and do whatever they want to do, because there's no Act there to stop them.

Sarah Dingle: To Wilfred Hicks, Aboriginal sites don't get much more sacred than the Burrup.

Wilfred Hicks: The Aboriginals' Bible that's on these rocks which was put there for the Aboriginal people at their culture time when they were teaching the younger people, these rocks are the carvings which they sing during the night of their culture law times. So I feel very sad.

Sarah Dingle: One of the reasons that the Burrup was taken off the register because they were following these new guidelines. What do you think of that, saying that there has to be religious use?

Wilfred Hicks: Well, I think that is all rubbish, because Aboriginal people, they'll go away and leave it. If anyone has died they will not go to that country for about two years. But their belief is still there.

Sarah Dingle: Many of the carvings on these rocks are only for certain people to understand.

Wilfred Hicks: Some of the rocks, you'll see they've got markings which has traditional marks on them, which I have to be very careful of not speaking about because that is only taught in Aboriginal culture time.

Sarah Dingle: Can you tell me some of the stories that are out there?

Wilfred Hicks: Well, you may see an echidna which is a porcupine. That's Aboriginal pork, you know. But to clean it you've got to sing a song, to get all that spikes off. There are ways of doing. If you don't, your meat will never be any good.

Sarah Dingle: What is on that face there?

Ken Mulvaney: You've actually got a splayed echidna. I call them roadkill design, as in they're flattened as opposed to a profile view of the animal.

Sarah Dingle: I'm out on the Burrup Peninsula with archaeologist Ken Mulvaney. Ken Mulvaney lives out here and his reports on the petroglyphs date back three decades.

Ken Mulvaney: You can see how deeply those images have been placed, hammered into the rock's surface in this case. And you've got almost a ladder-like decoration, an extended torso, with small feet. It's likely that that style…so you find them here in the inland Pilbara and then what is now the edge of the central desert. It's most likely those images were done before the deserts formed. So that image is potentially 25,000 years old or older. But what we'll do is we'll walk further along the slope and I'll show you the earliest examples that we have of the depiction of human figures.

Here we've got an example of the earliest form, and what we have is a central axis that runs vertical and you've got offset human figures, with their legs and arms attached to the vertical axis. And the style, a very particular rounded body with short thin limbs and with the head as a dot, that design is unique to the archipelago. It is conceivable that that is 30,000 years or older. In fact it's one of the earliest renditions of the human form in the world. And it's just sitting here out in the open.

Sarah Dingle: Ken Mulvaney says the most recent rock carving could be as young as 200 years old. That means this is probably the longest continual sequence of art in the world, telling a story which unfolds over tens of thousands of years.

Ken Mulvaney: On top of that is an animal that is probably a thylacine but it is unfinished. The tail is not as completely hammered out of the rock as the rest of the body but it's a solid form.

Sarah Dingle: So a Tasmanian tiger here on the mainland at the opposite end of the country to Tasmania?

Ken Mulvaney: That's right, it's exactly the case. But not only do we get thylacines, there's the Tasmanian devil that we see as well in the art here, along with what are known as megafauna, so extinct giant marsupials you see in the art.

The features of this kangaroo that we've got, it's sitting upside down, but there is the body. But the particular feature is this bulge in the tail. Unlike most kangaroos and wallabies, this has a bulge, a bit like the fat-tailed sheep. It appears that there was possibly a fat-tailed macropod that went extinct before the sea levels came in, before the Holocene period of Australia.

Sarah Dingle: Thousands of years later, in 1965, industry first arrived on the Burrup with Hamersley Iron's iron ore port. The WA Aboriginal Heritage Act began in 1972.

In the early '80s, Ken Mulvaney did his first surveys of the rock art as part of Heritage Act requirements to at least record sites before they were moved or destroyed.

Ken Mulvaney: For the Karratha gas plant development we recorded 9,500 engravings. 1,700 of those were moved to a compound, some 4,000 to 5,000 were destroyed in that area. And this was at a time when we actually knew this area was important. And development here quite literally equates to destruction of very important sites. The density of material here means that you can't move without knocking over something.

Sarah Dingle: Halfway up a hill, Ken Mulvaney shows me three large and clear carvings of a Tasmanian devil, an emu and a kangaroo, now facing straight at a fertilizer plant.

Ken Mulvaney: Yes. It is something that, again, industry forgets the footprint of itself in this landscape just is wrong. The fertilizer plant only started construction in 2003, the current technical ammonia nitrate plant is under construction today. There is no reason for them to be here other than the desire of state government Lands Department giving them the land. And it is a travesty that government is still encouraging industry to come here.

Wilfred Hicks: You could go on the Burrup at night here in certain areas, you will get the feeling of a spirit following you.

Sarah Dingle: It's night-time on the Burrup. This plain should be dark but in fact it's quite light and I can see the grass and the rocks around me. That's because it's lit up by three different stacks flaring off, two quite close and one just beyond the horizon. That roar you can hear is not the roar of the spirit world, it's the roar of the gas plant still in operation. Clearly, this is an industry that doesn't sleep.

As premier of Western Australia in the early '90s, Carmen Lawrence oversaw industrial development on the Burrup. She claims she didn't realise what was being destroyed.

Carmen Lawrence: One of my great sadnesses is that when I was premier and going up there to look at the new relatively new LNG gas train, nobody said: 'And look, just over the road there is the most extraordinary rock art precinct on the planet.' It is on the planet.

Sarah Dingle: So you're saying that staffers within the bureaucracy, potentially the Resources Department, kept the knowledge from you as premier as to just how extensive and special the rock art there was?

Carmen Lawrence: Well, not just from me but from the world at large. So this information for various reasons…I've tried to go back and find out where it was hidden, where it was. And I didn't know whether people just didn't think it was important…I suspect that that's the case, that they really did not appreciate the significance of this place. It was just 'another Aboriginal site'.

Sarah Dingle: Carmen Lawrence is now Chair of the Australian Heritage Council, which in the last decade has put parts of the Burrup on the National Heritage List. But they were the lands left over after industry's demands had been met, says Carmen Lawrence.

Carmen Lawrence: It was explicitly designed to exclude the current industrial estate.

Sarah Dingle: Those sections which already housed industry?

Carmen Lawrence: Yes, or that might in future, because there are some areas that are planned expansions.

Sarah Dingle: A report by the Australian Heritage Council found that the Burrup met the criteria for World Heritage Listing. But Carmen Lawrence says the federal government will not ask for UNESCO recognition unless Western Australia pushes for it. And a national heritage listing doesn't mean the Commonwealth protects the site, it also leaves that up to the state.

Carmen Lawrence: Once a place is listed, typically the commonwealth behaves as if it had no further responsibility, to a degree that I find disturbing.

Sarah Dingle: The sacred waters of Port Hedland, as well as the Burrup, and James Price Point were not the only places that were deemed not Aboriginal Heritage sites under the new guidelines in WA. The new guidelines for what was sacred were introduced more than two years ago at the end of 2012.

In March this year, state Greens MP Robin Chapple started asking questions in parliament about what else had been knocked off the state's Aboriginal Heritage Register.

Robin Chapple: We thought, oh, they're going to dodge this as they usually do. And then to come back and say, 'Well, we've deregistered the 23 other sites,' and we went, 'Oh, my god.'

Sarah Dingle: Every single one of those sites had a development application pending against it.

The Department of Aboriginal Affairs has now told Background Briefing that the number of heritage sites deregistered under the new guidelines is actually around 35. But deregistering acknowledged Aboriginal heritage sites isn't the only problem. Robin Chapple also asked how many sites had had their applications for heritage listing rejected.

Robin Chapple: We keep asking questions which we're expecting to get a non-answer and we're suddenly finding out, yeah, 1,200 other sites have been not put on the register.

Sarah Dingle: During the last two and a half years, 1,262 Aboriginal heritage claims were rejected using the new guidelines. In April this year, the Supreme Court found those guidelines contravened the Act itself. But if developers have destroyed any heritage values in the last two and a half years, there will be no price to pay.

Robin Chapple: They're also absolved under another part of the Act, that if they operated in good faith, because the Department had told them there wasn't a site there and they damaged a site, they actually have a legal excuse.

Sarah Dingle: And that is the case for more than 1,200 sites in just two years which have been refused heritage listing?

Robin Chapple: Absolutely.

Sarah Dingle: The state's shadow Treasurer and opposition spokesman for Aboriginal Affairs is a Yamatji man. Ben Wyatt has long been concerned that even for sites which survived on the Aboriginal Heritage List, listing still didn't mean protection. He asked in parliament how many times approval had been granted to disturb or destroy acknowledged Aboriginal heritage sites.

Ben Wyatt: The answer was given that between the 1st of January 2008 and the 14th of June 2013 there were 646 applications made. Of those 646 applications, the consent to destroy or disturb a site was only refused on one occasion. The argument that heritage sites and the existence of a site on the Aboriginal register somehow gets in the way of development is simply incorrect.

Sarah Dingle: But industry says it's not just about getting approval, it's about how long that decision takes.

The WA's Chamber of Minerals and Energy's Kane Moyle:

Kane Moyle: It's not necessarily the volume or which ones are or aren't rejected, it's how can we make the system efficient for those that aren't necessarily impacting on aspects of Aboriginal heritage.

Sarah Dingle: So 645 of 646 decisions go your way and you want to speed that process up?

Kane Moyle: The process for decision-making does ultimately affect final investment decisions, so not all of those projects may have necessarily gone through to development.

Sarah Dingle: Now the WA government is proposing to change the Aboriginal Heritage Act itself. An amendment bill is currently before parliament, which will concentrate all decision-making power for determining what is sacred into the hands of one person. The CEO of the Department of Aboriginal Affairs will make the decision on his own, and he doesn't have to consult with anyone, including traditional owners.

Former ACMC member, Michael Robinson:

Michael Robinson: A single bureaucrat who is not obliged to consult, from whom there is no appeal by Aboriginal people and whose decision-making processes are entirely opaque, so I think that that's a retrograde step.

Sarah Dingle: Background Briefing wasn't able to arrange an interview with the minister but you can see a written response from his Department and his office on our website.

Whether the changes pass depends on the support of the Nationals. In a statement, WA Nationals' leader Terry Redman told Background Briefing he will push for consultation with traditional owners to be enshrined in law. But, at best, that would be consultation only.

There are still more than 1,200 sites which now may never make it onto the state's Aboriginal Heritage Register as a heritage site, and around 35 other sites that were defined as sacred heritage but are now deregistered and may never regain lost protections, like the whole of the Burrup Peninsula.

Traditional owner Wilfred Hicks:

Wilfred Hicks: You go around the Burrup here you will feel spirits following you. So if this is not sacred here then I don't know where else I can say. The big picture what I can see here is all the rights are getting taken away from the Aboriginal people. They will be left with nothing. The CEOs and the Department of Aboriginal Affairs will be taking it all over. The Aboriginal that stands on the ground will just be back to where they were in early years.

Sarah Dingle: Background Briefing's coordinating producer is Linda McGinness, research by Lawrence Bull, technical production by Simon Branthwaite, the executive producer is Chris Bullock, and I'm Sarah Dingle.