WA’s Aboriginal Cultural Heritage Reforms Start Tomorrow: Essential Information

After much public discourse over the last few weeks (and some last minute clarifications), the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) will come into force tomorrow (1 July).

The ACH Act reflects a significant modernisation and change from the existing Aboriginal Heritage Act 1972 (WA). It includes a new approvals regime, a positive obligation to perform due diligence assessments relating to Aboriginal cultural heritage (ACH) and a requirement to consult with relevant Traditional Owners prior to commencing any activities which may harm ACH, as well as imposing significant new penalties for offences for causing harm to ACH.  While the ACH Act represents a steep change in statutory requirements, practically, it codifies what was previously regarded as best practice management for consultation, engagement and completion of heritage surveys into law in Western Australia.

Commencement

Despite calls for delays from some sectors, the full commencement of the ACH Act will not be delayed. However, the State Government announced yesterday:

• it would establish a ‘working group’ led by the Director General of the Department of Planning, Lands and Heritage (DPLH) with members from key industries for a six month period to monitor the initial implementation of the ACH Act and work collaboratively to address issues as they arise;
• DPLH would take an ‘education first’ approach to compliance with the ACH Act for the first 12 months of its operation, similar to the approach taken for implementation of the work health and safety laws; and
• the ACH Act framework would be subject to a 12 month review as part of the implementation process.

The outstanding documents necessary to support the ACH Act, being the Survey Guidelines, Investigation Guidelines and final Regulations, were finally released on Friday last week and the Environmental Protection Authority yesterday issued revised guidelines on the ‘Social Surroundings’ Environmental Factor Guideline, with interim technical guidance on the interface between an environmental impact assessment requirements for ACH and the operation of the ACH Act. At the time of publication, the DPLH ACH Directory and online portal are still not online.

DPLH has advised it will be staffed on Saturday and Sunday (1 and 2 July) in response to the predicted demand for assistance once the ACH Act comes into operation.

Lack of LACHS

The ACH Act was designed to empower Aboriginal people to protect, preserve and manage ACH in Western Australia. It was anticipated that this would largely be fronted by new 'local Aboriginal cultural heritage services' (LACHS). However, the ACH Act is commencing with no LACHS appointed. This will leave a gap which DPLH and the Minister for Aboriginal Affairs have advised is intended to be filled in the interim by prescribed body corporates and native title representative bodies. Consequently, delays in obtaining approvals under the new ACH Act are likely. Once LACHS have been appointed for an area, there will be an informal transitionary period while the LACHS build up their capacity and capability to discharge their responsibilities under the ACH Act.

Compliance

The ACH Act will generally require a shift in risk management, compliance processes and procedures across the economy, akin to that required over the years to bring companies into compliance with health, safety and environmental laws. The ACH Act will be applicable to all activities and industries from major to minor activities in Western Australia.  ACH approvals for Tier 2 and Tier 3 activities will be compulsory where there is a risk of harm to ACH as a result of those activities.

From 1 July, the degree of change required in practice for companies will differ dependent upon the circumstances, including timeframes for project and operational activities, whether section 18 consents are held and ‘grandfathered’, the strength of existing relationships with the relevant Traditional Owners, and the degree of preparedness in planning for compliance with the ACH Act.

All activities will now be categorised by tiers. Tier 2 Activities which may harm Aboriginal cultural heritage require an ACH Permit (applications will be made to the new ACH Council) and Tier 3 Activities which may harm Aboriginal cultural heritage will require an ACH Management Plan (to be agreed with the relevant Traditional Owner representative groups (ie the LACHS) and approved by the ACH Council).

Risk

The ACH Act contains new enforcement measures which go beyond financial and criminal penalties – under the ACH Act, the Minister for Aboriginal Affairs can issue stop work orders, remediation orders and order a land user to pay compensation to the Traditional Owners impacted. We note there is no quantum for the amount of compensation that can be granted in this respect. The offences and penalties provisions have extended liability provisions to directors and officers of companies. As noted above, DPLH has advised it will take an ‘education first’ stance in relation to compliance. We note that this is a policy stance only, companies will still need to ensure they have processes and procedures in place to ensure compliance with the ACH Act.

Help

With the ACH Act soon to be in force, there is an increased risk profile associated with activities that may harm ACH. We can assist to mitigate and manage those risks, including by:

• reviewing existing practices and proposed due diligence under the new ACH Act to identify risks of any compliance gaps with the ACH Act;
• providing education to boards and stakeholders within organisations to increase awareness of the ACH Act at all levels;
• providing advice on risk assessments and compliance measures for current and future activities; and
• reviewing contract templates to ensure they are fit for purpose and appropriately allocate risk.

Please do not hesitate to contact us if you have any queries in relation to the operation of the ACH Act.

By Melanie Debenham, Partner, Naomi Hutchings, Special Counsel and Amelia Arndt, Senior Associate