Legislation update

WA Aboriginal Cultural Heritage Act repealed – a step back to move forward

By Jonathan Fulcher and Alison Cooper / 15 November 2023

After much anticipation, the Aboriginal Cultural Heritage Act 2021 (WA) (2021 Act) has today been repealed, and the Aboriginal Heritage Act 1972 (WA) (1972 Act) is once again the primary source of legislation for the protection of Aboriginal cultural heritage in WA.

On 24 October 2023, the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (the Act) was assented to by the WA Governor after passing through the WA Legislative Council on 17 October 2023. The Act repeals the 2021 Act, which was met with significant backlash from the industry after it fully commenced in July 2023, and amends the old 1972 Act, which was set to be phased out by the end of 2023. 

To discuss this legislative change and related matters, please reach out to our native title and cultural heritage team. You can also find out about our national resources and energy practice, and our expertise providing legal advice on resources, energy and projects.

In this alert, Partner Jonathan Fulcher, Senior Associate Alison Cooper, Solicitor Claudia Hill and Law Clerk Emma Williams from HopgoodGanim’s Resources and Energy practice discuss the key changes and what this means for proponents. 

Section 18 consents – what has changed?

The well-known and controversial section 18 approval process by which Ministerial consent is obtained to authorise the damage or destruction of Aboriginal sites, has been reinstated and ‘improved’ for the purposes of strengthening the role and input that Aboriginal people have regarding this process.

The section 18 approval process requires “the owner of any land” (which includes, among other things, a tenement holder, the holder of a right or privilege under the Petroleum and Geothermal Energy Resources Act 1967 (WA) in relation to the land, and certain licence holders specified under s 18(1a) of the 1972 Act) (Landowner) to give notice to the Aboriginal Cultural Heritage Committee (previously known as the Aboriginal Cultural Material Committee) (Committee) to use the land for a purpose which would likely result in damage or destruction to Aboriginal sites. 

Upon receiving notice by the Landowner, the Committee is then required to form an opinion regarding the existence of any Aboriginal sites on the land, and if so, the importance and significance of such site. The Committee will then submit the notice to the Minister along with their recommendation as to whether the Minister should grant consent to use the land and impose any conditions (section 18 consent). The timeframe for the Committee to submit this to the Minister is currently 70 days after notice has been received. The Minister then has the power to grant the application for consent, subject to any conditions, or refuse it.

The key changes to section 18 include:

  • the right to apply to the State Administrative Tribunal (SAT) to review the Minister’s decision to grant, refuse, amend, revoke or confirm a section 18 consent now extends to the native title party in relation to the land. The application must be done so within 28 days after the day the consent is published. This right previously only applied to the Landowner;
  • any provision in a contract or agreement that prohibits, or has the effect of prohibiting, a native title party in relation to the land from exercising their right to review, commencing proceedings, being heard or making submissions in respect of a section 18 consent, is rendered void;
  • Landowners that hold a section 18 consent are now required to notify the Minister if they become aware of any ‘new information’ about an Aboriginal site on the land that is the subject of the consent. The Landowner is required to notify the Minister within 21 days of becoming aware of the new information, and failing to do so is an offence. Where the Minister is notified of such by: 

            1. the Landowner, the Minister must reconsider the consent; or
            2. any other means, the Minister may reconsider the consent, and

            in either circumstance, the Minister has the power to suspend, confirm, revoke, replace or amend the consent. 

    At this stage, no guidance has been made available to clarify what constitutes ‘new information’, and whether there is any threshold for the materiality of ‘new information’;
  • where there is a change in ownership of the land subject to a section 18 consent, the owner of the land must notify the Minister within 14 days, as well as the Committee and the native title party in relation to the land within 28 days, of the change in ownership occurring. The Minister may amend or revoke the consent if the Minister believes the consent, or a condition of the consent, does not have its intended effect as a result of the change in ownership; and
  • a new section 18A will be inserted the allowing the Premier to determine an application if the Premier considers that the application raises issues of State or regional importance that warrant the application to be determined by the Premier.

Other notable changes

The Act provides that any ACH permits or management plans granted before 15 November 2023, will be treated as a section 18 consent. Furthermore, any pending applications for an ACH permit or management plan made before 15 November 2023, will be treated as notice given to the Committee for the application of a section 18 consent. 

Another important change is the reshaping of the Committee, previously known as the Aboriginal Cultural Material Committee under the 1972 Act. The Committee will have essentially the same composition as the ACH Council that was established under the 2021 Act, but has been renamed under the Act. It is a requirement under the Act that the Minister appoints 2 chairpersons to the Committee of Aboriginal descent, one whom represents women’s business and other whom represents men’s business. This is to provide for a greater representation of Aboriginal people when providing recommendations under the section 18 consent process. 

What does this mean for proponents?

For many proponents, the reversion to the 1972 Act and the familiar section 18 approval process will put an end to ongoing confusion regarding their obligations with respect to Aboriginal cultural heritage.

Heritage agreements that were entered into by proponents with native title parties on the basis of the 2021 Act will likely require renegotiation and amendments to ensure the provisions continue to operate as intended based on the updated, yet familiar, legislative framework.

The broader definition of ‘Aboriginal cultural heritage’ adopted under the 2021 Act, which included ‘cultural landscapes’ and other forms of intangible cultural heritage, have not been carried across to the 1972 Act, reducing the scope of the kinds of Aboriginal cultural heritage protected by legislation and accordingly, the scope of the offence provisions where Aboriginal sites, or an object on or under an Aboriginal site, are harmed. 

The concept of ‘exempt activities’, for which proponents did not need any form of authorisation (unless the activities were to be conducted in a protected area) introduced under the 2021 Act has also been abandoned.

Most significantly, on repeal of the 2021 Act, proponents are no longer required to comply with the tiered assessment process, which required different authorisations for different levels of ground disturbance, or the due diligence assessment requirements, where a proponent was required to investigate the presence of Aboriginal cultural heritage prior to applying for any authorisation or conducting an activity. 

However, the Minister for Aboriginal Affairs has stated that it is expected that landowners will continue to engage in meaningful consultation with the relevant Indigenous parties to ensure their input is considered about how Aboriginal sites will be protected or managed. We expect the WA Government will formalise this in a policy statement or guidelines in due course. 

Under the 1972 Act, proponents generally mitigate the risk of harm to Aboriginal sites or objects by engaging with Indigenous parties to carry out heritage surveys. To support the mining industry, the Minister for Aboriginal Affairs recently announced its Aboriginal Heritage Survey Assistance Program to offset the increasing costs of conducting Aboriginal Surveys. More information about the Aboriginal Heritage Survey Assistance Program is available on DMIRS’ website.

If you have any queries regarding Aboriginal cultural heritage or how these changes will affect your project, please contact Jonathan Fulcher or Alison Cooper.

Key Contacts
Jonathan Fulcher
Jonathan is a Partner and leads our Resources and Energy practice, as well as our Native Title practice.
Alison Cooper
Senior Associate
Alison is a Senior Associate in our Resources and Energy practice.

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