Consultation on the draft WA Aboriginal Cultural Heritage Bill 2020

After much anticipation, the WA State Government last week released for public consultation the draft Aboriginal Cultural Heritage Bill 2020 (Draft Bill).

As expected, the Draft Bill proposes to repeal the existing Aboriginal Heritage Act 1972 (WA) and replace it with a new Act embodying more modern approaches to heritage management and providing a more comprehensive regulatory and administrative framework.

Elements of the Draft Bill

Broadly speaking, the Draft Bill contains similar changes to those previously proposed in the Minister for Aboriginal Affairs’ discussion paper released in March 2019 and the subject of consultation by the WA State Government since late last year. These include:

• A broader definition of ‘Aboriginal cultural heritage’ which includes tangible and intangible elements, and cultural landscapes.
• Establishment of a new Aboriginal Heritage Council to replace the ACMC but with broader functions.
• Appointment of Local Aboriginal Cultural Heritage Services (LACHS) to represent and support knowledge holding groups on heritage matters.
• Introduction of a tiered ‘approvals’ system enabling permits to be obtained for low impact activities and requiring cultural heritage management plans for medium to high impact activities.
• A stricter enforcement regime with increased penalties.
• Establishment of the ‘ACH Directory’ to replace and refresh the existing Register of Aboriginal Sites.

But there are also a number of new elements. The implications of new information regarding the existence and significance of cultural heritage values for approvals and reporting obligations, and the identification of ‘State significant’ cultural heritage values, are notable examples.

Submissions on the Draft Bill

Submissions in response to the Draft Bill are due by 9 October 2020.

Land users intending to make a submission may wish to consider the following matters:

• The breadth of the definition of ‘Aboriginal cultural heritage’.
• The suitability of the criteria to be appointed as an LACHS.
• The formulation and scope of the offence provisions – in particular, the potential for negligible harm to Aboriginal cultural heritage to give rise to an offence.
• The requirements for a permit or cultural heritage management plan where an activity ‘may’ impact Aboriginal cultural heritage. This requirement is not expressly tied to a likelihood of harm.
• Whether the procedural requirements to obtain a permit for a low impact activity that may harm Aboriginal cultural heritage are fit-for-purpose.
• Whether the procedural requirements for an Aboriginal party to give ‘informed consent’ to a cultural heritage management plan are also fit-for-purpose.

We have closely reviewed the Draft Bill and are available to provide further support in identifying the issues that may be relevant to your business. Please contact Mel Debenham or Emily Wilson to further discuss the implications of the Draft Bill.