Heritage today and tomorrow: An update on Aboriginal cultural heritage legislation in Western Australia

On Tuesday, the Western Australian (WA) State Government formally announced the new Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) will be repealed, just over a month after it commenced. Regulation of Aboriginal cultural heritage will revert back to the Aboriginal Heritage Act 1972 (WA) (AHA). In this blog post, we explain what the repeal legislation contains, implications for companies operating during the transition period and what might be on the horizon over the next year in this space.

The WA State Government has now published the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (WA) (Repeal Bill) which will repeal the ACH Act and reinstate an amended version of the AHA. Until the time that the ACH Act is formally repealed, and the Repeal Bill commences, all land users in WA will continue to be required to comply with the ACH Act. There will therefore remain continuing practical implementation issues for compliance, including, for example, the lack of local Aboriginal cultural heritage services (LACHS). We anticipate those issues will be short lived given the swift publishing of the Repeal Bill.

The Repeal Bill will come into force after it has been passed through both Houses of Parliament and receives Royal Assent. We expect the Repeal Bill to be introduced and then passed at the next Parliamentary sitting.

Key amendments

The Repeal Bill will largely reinstate the AHA with the following key amendments.

Section 18 consents

Section 18 consents will be reinstated as the only statutory authority available to authorise impacts to ‘Aboriginal Sites’. The Repeal Bill has retained the old AHA definitions of Aboriginal Sites and Aboriginal Objects and has not carried across the more expansive definition of Aboriginal cultural heritage from the ACH Act.

Obligation to inform the Minister of new information

Existing and future Section 18 consents will now be subject to a condition requiring the consent holder to inform the Minister for Aboriginal Affairs (Minister) of any new information they become aware of in relation to the relevant Aboriginal Site to which the Section 18 consent relates.

New information will provide an avenue to reopen Section 18 consents, with the Minister able to amend, impose new or different conditions, revoke or grant a new Section 18 consent. Importantly if the Minister is informed of new information by way of notification from the holder of a Section 18 consent, the Minister must make a decision in respect of that new information. The Minister may suspend the Section 18 consent while making a decision, during which period the holder will not be able to rely on its authority.

The new information provisions are a response to the key findings of the Senate Inquiry into the destruction of Juukan Gorge and analogous to those in the ACH Act.

New appeal rights

The owner of any land or a native title party aggrieved in relation to a Ministerial decision may make an application to the State Administrative Tribunal (SAT) for a review of the decision. In this case, 'native title party' refers to a registered native title body corporate, a registered native title claimant or a person under a native title settlement. There is no longer the more expansive concept of knowledge holders in areas where there are no native title claims or settlements. There will also be no LACHS.

The Premier will have the power to intervene if such an application is made and determine the matter (either straight away or following a hearing of the applications and SAT's recommendations).

Aboriginal Cultural Heritage Committee

The Aboriginal Cultural Heritage Council will be disbanded and then re-branded as the 'Aboriginal Cultural Heritage Committee'. The Aboriginal Cultural Heritage Committee will essentially have the same functions as the former Aboriginal Cultural Material Committee under the AHA, which include reviewing and determining Section 18 consent applications. All of the current members of the ACH Council will be appointed to the Aboriginal Cultural Heritage Committee. The Aboriginal Cultural Heritage Committee is required to have majority Aboriginal membership.

Fees

The Department of Planning, Lands and Heritage (DPLH) published (but did not formalise) fee structures relating to authorisations under the ACH Act, as a means of funding LACHS on a cost recovery basis. The amendments in the Repeal Bill retain the ability for DPLH to seek cost recovery relating to the ‘performance of the functions’ under the AHA through the regulations (which have not yet been published). In the absence of published regulations, it remains to be seen what might be established in this regard. We note that the WA State Government has flagged plans to conduct Aboriginal cultural heritage surveys across the State, without any detail on how these surveys will be funded.

Transitional provisions

Following the commencement of the Repeal Bill, a number of processes and authorities introduced under the ACH Act will have to be transitioned to the new regime. We expect regulations to be published in the coming weeks to provide more clarity in relation to this transition. Some of the issues that will be dealt with under the regulations may include:

• more detail in respect of the functions and procedures of the Aboriginal Cultural Heritage Committee;
• the fees payable for the performance of functions under the AHA, interest on unpaid fees, and penalties for failure to pay fees; and
• timeframes for obtaining Section 18 consents.

Register

All of the information and documents which are currently contained in the Aboriginal Cultural Heritage Inquiry System and on the Aboriginal Cultural Heritage Directory maintained by DPLH will be transferred overto a new register (yet to be named) to be maintained by DPLH under the new legislation. This register will now show Aboriginal Sites as defined in section 5 Aboriginal Sites of the AHA but will likely also contain unverified information in relation to other Aboriginal cultural heritage, similar to the way the register operated under the AHA.

Authorities granted under the ACH Act

Under the ACH Act, Section 18 consents were replaced by an alternative tiered approvals regime that applies where an activity presents a risk of harm to Aboriginal cultural heritage - ACH Permits and ACH Management Plans. In the event that any ACH Permits or ACH Management Plans have been issued before the ACH Act is repealed, these ACH Permits and ACH Management Plans will be converted automatically into Section 18 consents.

Previous Section 18 consents (and any approvals granted under Regulation 7 or Regulation 10 of the Aboriginal Heritage Regulations 1974 (WA)) granted under the AHA, prior to the commencement of the ACH Act, will remain in force.

Offences

Any orders which were made under the ACH Act (prohibition orders, remediation orders, stop activity orders, etc) will cease to have effect immediately upon the ACH Act being repealed. Any proceedings for an offence committed under the ACH Act before the ACH Act is repealed will continue and the person will be 'punished for the offence accordingly'. There is no public information available on whether any orders or proceedings were made or instigated under the ACH Act. The expanded offences, penalties and liability provisions introduced in the ACH Act have not been carried across by the Repeal Bill into the AHA.

What do I need to do until the Repeal Bill is enacted?

Until the ACH Act is repealed, the ACH Act remains in force and all land users in WA must continue to act in accordance with their obligations under the ACH Act. This means that land users will be required to continue to conduct due diligence assessments prior to commencing all activities (except exempt activities), and seek an authorisation where there is a risk of harm to Aboriginal cultural heritage (as defined under the ACH Act) posed by tier 2 or tier 3 activities (please see our previous blog post on the risk of harm and due diligence assessments here). All land users will still be required to take all steps necessary to avoid or minimise the risk of harm to Aboriginal cultural heritage.

Federal legislation – watch this space

The Federal Government is expected to introduce its plans to modernise and reform the Federal cultural heritage regime next year. To this date, nothing concrete has been published in terms of the preferred pathway for reform or timing, given consultation and a ‘co-design’ process is still occurring. Three options have been proposed and are currently being considered:

• overarching Federal legislation which would replace all State and Territory legislation;
• Federal accreditation of State and Territory legislation which meets national standards; or
• a ‘model’ legislation which the States and Territories could adopt.

The ACH Act was generally viewed as the high watermark for Aboriginal cultural heritage protection in Australia. Its repeal may influence the approach taken to Federal legislation in this space.

Beyond compliance

Irrespective of the legislative framework, appropriate management and protection of Aboriginal cultural heritage remains paramount. Many of the principles underpinning the ACH Act are representative of a leading practice approach. For this reason, we recommend land users carefully consider the practices they will adopt moving forward.

The AHA will set a minimum standard of compliance, however there may be good reasons to operate beyond that standard. Respectful and meaningful engagement with Traditional Owners is central to maintaining a social licence to operate. This will be reflected in proponents’ contractual obligations and will form the basis of long-standing relationships.

We see strong consultation with relevant native title parties and knowledge holders, thorough due diligence and Aboriginal cultural heritage surveys (where required), and agreement making as the best tools for land users to inform themselves of Aboriginal cultural heritage in their area of influence and mitigate risks.

Please do not hesitate to contact us if you have any queries in relation to the continued operation of the ACH Act or any matters in relation to the transition back to the new AHA, following the repeal of the ACH Act.

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