What does the Aboriginal Cultural Heritage Act mean for Section 18 Consents?

As highlighted in our blog post on Friday, the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) came into force on 1 July 2023. This blog post examines the transitional arrangements in the ACH Act which apply to section 18 consents granted under the Aboriginal Heritage Act 1972 (WA) (AHA).

Under the ACH Act, section 18 consents have been replaced by an alternative tiered approvals regime that applies where an activity presents a risk of harm to Aboriginal cultural heritage (ACH). However, the ACH Act recognises that existing valid section 18 consents issued under the AHA can be relied upon in certain circumstances and for a specified time period.

Section 18 consents approved between 22 December 2021 and 1 July 2023

Section 18 consents approved under the AHA on or after the assent day of the ACH Act (22 December 2021) are limited in duration to a maximum of five years. Generally, section 18 consents granted after this date can be relied upon provided their conditions are complied with. The Minister for Aboriginal Affairs must be notified about any newly identified ACH arising after the date of the section 18 consent.

Section 18 consents approved before 22 December 2021

Section 18 consents approved prior to the assent day of the ACH Act will expire at the end of a 10 year period from 1 July 2023 (by 1 July 2033), unless:

• the section 18 consent is no longer in force (eg, it has expired in accordance with its terms, achieved its purpose or has been surrendered); or
• the Minister for Aboriginal Affairs determines that the section 18 consent will not expire as the purpose for which the consent was granted has been ‘substantially commenced’.

If the purpose for which the consent was granted has been substantially commenced, the holder may give notice to the Minister 12 months prior to the expiry of the section 18 consent. The Minister may then determine that the section 18 consent’s expiry date will be extended beyond 1 July 2033.

The criteria for determining whether the purpose has been substantially commenced are contained in the ‘Determining Substantially Commenced’ Guidelines published by DPLH. The Guidelines will be the subject of regulations and as such, are subject to potential change. Regard may also need to be had to case law on the meaning of ‘substantial commencement’ and in most circumstances, will turn on the factual scenario at hand.

The criteria listed in the Guidelines are:

• whether the land is being used for the purpose specified in the consent;
• whether relevant licences, permits and approvals have been obtained to use the land for the purpose specified in the consent;
• whether any of the following activities have been undertaken in relation to the land in preparation for the purpose specified in the consent:
  • clearing or other site works to support the construction of key infrastructure;
  • construction of new roads, tracks, trails, pathways or parking areas to service key infrastructure; or
  • installation of new services including power, water, sewer or telecommunications services to service key infrastructure; and
• whether the activities referred to above have been undertaken in relation to any other land in connection with a larger project of which the purpose specified in the consent forms a part.

Section 18 consents are not transferable

Section 18 consents can only be relied upon if the underlying land owner (including a tenement holder) remains the same as the section 18 consent holder. Conducting due diligence to identify any existing section 18 consents ahead of any land or tenement transactions therefore continues to be critical.

Moving forward

Although section 18 consents are ‘grandfathered’ for specified time periods, in practice, some organisations have chosen not to act upon or rely solely upon their existing section 18 consents. Prior to relying on a section 18 consent, we recommend:

• consultation is undertaken with Traditional Owners; and
• the circumstances underpinning the section 18 consent are reviewed to ensure that new ACH information has not come to light since the consent was granted which may be material to the defensibility of the authorisation.

If new ACH information does come to light, companies may need to consider seeking contemporary approvals under the ACH Act. For further information on the findings of the Juukan Gorge Inquiry, please see our previous blog post.

For further context on the commencement of the ACH Act, please refer to our recent post.

Please subscribe to our blog posts to receive tomorrow’s update on ‘the risk of harm – when will you need to seek an approval under the ACH Act?’.

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