Aboriginal Cultural Heritage Bill 2021 passes WA Parliament

On 15 December 2021, the much anticipated Aboriginal Cultural Heritage Bill 2021 (WA) (the Bill) passed the upper house of the Parliament of Western Australia as introduced. The Bill has been updated since the previously circulated Aboriginal Cultural Heritage Bill 2020 (WA) (Exposure Draft), and has been designed to replace the Aboriginal Heritage Act 1972 (WA).

Snapshot

1. The Bill was released by the Department of Planning, Lands and Heritage on 16 November 2021. The Bill passed the upper house of Parliament of Western Australia on 15 December 2021 unamended. The Bill will now proceed to receive Royal Assent, which is likely to be before the end of the year or early 2022.
2. The Bill is different to the Exposure Draft principally in response to stakeholder feedback. Some key differences include:
   1. the narrowed definitions of ‘harm’ to Aboriginal cultural heritage and ‘exempt activities’;
   2. a revised due diligence defence and the revision of what constitutes a due diligence assessment;
   3. new processes around funding for local Aboriginal cultural heritage services;
   4. insertion of a power to require compensation for harm to Aboriginal cultural heritage;
   5. insertion of a new part on Aboriginal cultural heritage protection agreements; and
   6. a positive obligation to undertake a due diligence assessment in order to obtain authorisations for tier 2 (low level of ground disturbance) and tier 3 (moderate to high level of ground disturbance) activities that may harm Aboriginal cultural heritage.

The updated Bill

Since our discussion of the Exposure Draft in September 2020, a suite of changes have been incorporated to create the Bill. These changes are responsive to stakeholder feedback on the Exposure Draft and include updates to definitions, the due diligence regime and associated defence, and approvals mechanisms. Key amendments to these areas are discussed below.

Quantification and consistency

The Offsets Metric is intended for use in new approval applications under both Part IV and V of the EP Act. It adopts a balance-sheet approach to capture the minimum offsets required to counterbalance significant environmental impacts and quantify benefits.

Key objectives associated with this tool are transparency and consistency.

Notably, the Offsets Metric was developed in consultation with stakeholders, using the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) offset calculator as a point of reference. As the Offsets Metric is aligned with the Commonwealth offset calculator, streamlining of State and Commonwealth assessment processes is anticipated.

Definitions

1. The definition of what constitutes harm to Aboriginal cultural heritage has been narrowed under the Bill. In response to industry and land user feedback, the definition of ‘harm’ no longer includes demonstrations of disrespect in regards to the importance of Aboriginal cultural heritage to Aboriginal people, or diminishing or otherwise affecting the value of Aboriginal cultural heritage.
2. The terms ‘minimal impact activity’, ‘low impact activity’ and ‘medium to high impact activity’ have been replaced with the concepts of tier 1, 2 and 3 activities. The definitions are otherwise unchanged from the Exposure Draft. Further articulation of what comprises these activities will be contained in regulations.
3. The definition of ‘exempt activities’ has been amended, for example:
   1. Clearing of native vegetation in accordance with a clearing permit granted and in force under Part V of the Environmental Protection Act 1986 (WA) is no longer an ‘exempt activity’.
   2. The exemption for ‘construction, renovation or demolition of a residential building’ has been revised to clarify that the residence must be occupied, or there must be an intention to occupy, for this exemption to apply.

Due diligence regime

1. To obtain authorisation to undertake a tier 2 activity or a tier 3 activity which may harm Aboriginal cultural heritage proponents are required to undertake a due diligence assessment. Under the Exposure Draft there was only a positive obligation to undertake due diligence before undertaking a tier 1 activity (no or minimal ground disturbance). A number of other requirements for Aboriginal cultural heritage permits (ACH Permit) and Aboriginal cultural heritage management plans (ACHMP) have also been amended.
2. The definition of ‘due diligence assessment’ has been updated, with the Bill specifically requiring that in order for something to be a due diligence assessment an ‘assessment’ must be made, as compared to a ‘preliminary determination’ under the Exposure Draft.
3. The due diligence defence in respect to harm to Aboriginal cultural heritage has been amended. For the defence to be available, persons must show:
   1. a due diligence assessment was undertaken, and that the due diligence assessment concluded there was ‘no risk of harm being caused’ to Aboriginal cultural heritage due to carrying out activities; and
   2. all reasonable steps were taken to minimise or avoid harm to Aboriginal cultural heritage.

Plans and permits

1. The Aboriginal Cultural Heritage Council (ACH Council) must issue an ACH Permit if they are satisfied that the relevant requirements have been met. In this respect, an additional subclause has been included in the Bill confirming that the ACH Council must also refuse to grant an ACH Permit if the requirements are not met. This provision has been included in response to stakeholder concerns that the previous drafting provided discretion for the ACH Council to refuse a permit even if all relevant requirements were met.
2. A new part in relation to ACH protection agreements has been inserted in the Bill. These are agreements where no ACHMP trigger exists. This does not provide an authorisation pathway.
3. The power to suspend or cancel an approved ACHMP now rests with the Minister, not the ACH Council.
4. If there is Aboriginal cultural heritage of ‘outstanding significance’ located in an area, it may be declared a protected area under Part 4 of the Bill. ‘Outstanding significance’ is now linked to the views of a knowledge holder, or a group or community which is a knowledge holder for the Aboriginal cultural heritage. Under the Exposure Draft, ‘outstanding significance’ was linked to the views of ‘Aboriginal people’ at large.
5. The initial duration of ACH Permits has been extended from 2 to 4 years. However, ACH Permits can still only be extended by 2 years.
6. The definition of ‘informed consent’ in respect to an ACHMP has been amended. Information must now be provided on ‘feasible alternative methods’ available to the proponent to carry out the activity.

Next steps

Once the Bill has received Royal Assent, this will mark the official start of the transition period. The Government has set aside a timeline for 12-18 months for the transition process.

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

To view the Bill, visit this link.

By Melanie Debenham, Partner, Mia Swift, Solicitor, and Ellen Frodsham, Solicitor.