Aboriginal Cultural Heritage Act set to be scrapped – what does this mean for proponents?
After weeks of backlash over the introduction of the “confusing” and “divisive” Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) on 1 July 2023, the WA Government has formally announced this morning that the legislation will be repealed, report Partners Jonathan Fulcher and Damian Roe, Senior Associate Alison Cooper and Solicitor Claudia Hill.
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The Aboriginal Heritage Act 1972 (WA) (1972 Act), which was to be phased out by the end of the year, along with its controversial section 18 consent process, will now be ‘improved’ and brought back into force as the primary instrument for the protection and management of Aboriginal cultural heritage.
The 1972 Act will be subject to ‘targeted and simple’ amendments to provide stronger protection for Aboriginal cultural heritage, including:
inserting an obligation for proponents to inform the Government of any new discoveries of Aboriginal cultural heritage that would merit reconsideration of their section 18 approval;
allowing Aboriginal groups the right to appeal ministerial approvals to damage their cultural heritage;
making ‘gag orders’ preventing Aboriginal parties from disclosing the existence of heritage unlawful; and
providing greater representation of Aboriginal people by replacing the Aboriginal Cultural Material Committee with the Aboriginal Cultural Heritage Council as the body responsible for making recommendations to the Minister for section 18 approvals.
The WA Government has also announced it intends to leverage the resources originally allocated to support the implementation of the ACH Act to conduct heritage surveys in ‘high priority areas’ across the State (with landowner consent) and form a centralised database of heritage information.
This could have implications for native title parties who provide heritage functions on their country; it is not yet known whether native title parties or Traditional Owners will be consulted or involved in these heritage surveys.
The Local Aboriginal Cultural Heritage Services (LACHS) set up under the ACH Act will no longer operate, with the WA Government to use the grant money previously available to LACHS to support native title parties with capacity building.
Proponents have spent months preparing for the changes under the ACH Act, with many incurring significant costs in legal advice, and entering into new heritage agreements with Aboriginal parties in compliance with the processes implemented under ACH Act, its regulations and various guidelines.
It is not yet known when the 1972 Act and section 18 consent process will be back in force. The question remains as to where this will leave proponents who wish to undertake ground disturbing activities in the meantime, and whether the back pedal on the ACH Act will cause delays in this space.
Further, there will likely be implications for proactive proponents who have taken steps to change their processes regarding heritage or entered into heritage agreements on the basis of the ACH Act, which may now need to be revisited.
We will keep you updated as the changes progress through Parliament.