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In March 2019, the Minister for Aboriginal Affairs released a discussion paper outlining proposals for reforming the Aboriginal Heritage Act 1972 (WA) (Discussion Paper). The 31 May 2019 date for lodging a submission in response to the Discussion Paper is fast approaching. Any person with land or project development interests in WA should closely follow the course of these reforms.
The Discussion Paper is the second phase of the consultation process and distils outcomes from phase one into reform proposals. It proposes repealing the existing Aboriginal Heritage Act 1972 (WA) (Current Act) and replacing it with a new Act embodying modern approaches to heritage management and providing a more comprehensive regulatory and administrative framework (New Act). Given the tenor of the reform, the Discussion Paper contains a range of new regulatory approaches, as well as refinements to approaches under the current regime.
The Discussion Paper presents the proposals at a high level, therefore, likely implications for land users will be better understood once an exposure draft bill is released. Based on our current knowledge of the proposed New Act’s content, we have prepared a summary of the key proposals in the table below, together with our initial thoughts on potential implications.
No | Theme | Position under the Current Act | Proposal for the New Act | Comments |
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1 | Scope of the Act |
The Current Act applies to ‘places’ and ‘objects’ regardless of registration. A ‘place’ is a site of importance or significance to persons of Aboriginal descent, which is connected with their traditional cultural life, including sacred, ritual or ceremonial sites. The Act applies to objects of sacred, ritual or ceremonial significance to Aboriginal persons. |
A definition of ‘place’ is proposed that is aligned with the broad definition of ‘place’ within the Australia ICOMOS Charter for Places of Cultural Significance, the Burra Charter, 2013: “Place means a geographically defined area. It may include elements, objects, spaces and views. Place may have tangible and intangible dimensions”. The explanatory notes to the Burra Charter explain that ‘place’ includes natural and cultural features, such as cultural landscapes, sites with in situ remains, community meeting places and sites with spiritual or religious connections. ‘Cultural landscapes’ are a collection of places in the landscape that are connected in a clear way (e.g. by a single mythology). Ancestral remains will be protected, while intellectual property rights in stories, songs and bush medicines will remain outside the Act’s scope. ‘Significance’ may not be key to the ‘place’ definition. A place may be registered without further assessment if non-statutory standards set by the ‘Aboriginal Heritage Council’ (AHC) regarding information about its significance are satisfied. |
The proposal appears to expand what will be considered as a ‘place’, the key changes being the inclusion of ‘cultural landscapes’ and intangible heritage values. Protection will still be provided regardless of registration. Potential implications of the proposal may include:
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2 | Bodies performing functions |
The key actors are currently:
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Roles for traditional owners will be embedded in the new regime, which will also prescribe and elevate the role of the Department of Planning, Lands and Heritage (DPLH). Decision-making responsibility on approvals will be divided between the Minister and the AHC, a new Aboriginal representative council. The key actors are proposed to be:
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The functions and responsibilities allocated by the proposed regime are a mixture of new approaches and refinements of the current regime. Potential implications of the proposal may include:
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3 | Land use proposals which may impact Aboriginal heritage |
Currently, approvals are obtained as a means of obtaining a ‘defence’ in respect of an activity which would otherwise be an offence. Consents under section 18 are obtained from the Minister in respect of land uses. Authorisations under section 16 are obtained from the Registrar to excavate or remove a thing from an Aboriginal site. |
The approval regime will promote traditional owner consultation, and encourage land users to plan their activities to minimise or avoid adverse heritage impacts. A referral mechanism to facilitate tiered assessments and approvals of land uses, similar to the Environmental Protection Act 1986 (WA) is proposed, involving:
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The proposal will create a new system for assessing and approving land use proposals. Potential implications of the proposal may include:
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4 | Ratified Aboriginal heritage agreements | While heritage agreement-making is an established practice, the Current Act does not contain mechanisms to recognise heritage agreements or agreed heritage outcomes. |
To encourage agreement-making and seek to assist land users with agreements in obtaining approvals, those agreements may be ‘ratified’ so that:
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Questions have arisen about the suitability of existing heritage agreements within the new regime. This is likely to be an aspect of focus during the next phase of consultation. Potential implications of the proposal may include:
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5 | Transparency of decision-making |
One of the criticisms of the current regime is a lack of transparency as there are:
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This lack of transparency is sought to be addressed by:
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The proposal is intended to benefit traditional owners and land users. Potential implications of the proposal may include:
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6 | Enforcement |
Other criticisms of the current regime are that its enforcement regime is not strong enough, nor an adequate deterrent. The current regime provides for modest fines, the greatest being $50,000 for the first offence of a body corporate, and $100,000 for a subsequent offence, with a daily penalty of $1,000. Prosecutions must be commenced promptly, within 12 months of the offence. A person can argue an ‘Ignorance Defence’ – that the person did not know, or could not reasonably be expected to have known, that the Act applied to the relevant place or object. |
While the same range of offences for adverse impacts on heritage values without approval will remain, changes are proposed to strengthen the regime, including:
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Potential implications of the proposal may include:
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The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2024
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