Legislation update

Overhaul of Aboriginal heritage legislation in WA

Jonathan Fulcher, Paul Harley, and Liz Wreck / 25 September 2020
8 min.
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Worthwhile read for: Mining industry practitioners

The Western Australian State Government has released the Aboriginal Cultural Heritage Bill 2020 (Bill). It is proposed to replace the Aboriginal Heritage Act 1972 (AH Act). If enacted, it will mark the first time the AH Act was materially amended since its inception 48 years ago. 

The Bill strengthens the protection of Aboriginal cultural heritage in Western Australia by:

  • significantly increasing the penalties imposed for harming Aboriginal cultural heritage;
  • introducing a new tiered assessment system for different categories of activities that may harm Aboriginal cultural heritage with approvals required for low and medium, to high impact activities; and 
  • modernising the definition of ‘Aboriginal cultural heritage’ (ACH) to include intangible elements that are important to the Aboriginal people of Western Australia and cultural landscapes. 

If enacted, the Bill will significantly impact professionals and industries that work in areas of cultural importance to Aboriginal people in Western Australia. 

The Bill is open for public comment until 9 October 2020.

Creation of ACH Council and Local ACH services

The Bill creates an Aboriginal Cultural Heritage Council (ACHC) to replace the Aboriginal Cultural Material Committee (ACMC). The ACHC has broader functions than the ACMC. It is anticipated that the ACHC will appoint local Aboriginal cultural heritage services (LACHS) for different areas of the State to represent local Aboriginal groups on heritage matters.

The following can apply to be appointed as LACHS for a particular area:

  • registered native title claimants or holders; 
  • Aboriginal corporations or companies under the Corporations Act 2001 which represent the Aboriginal community in an area; or 
  • native title representative bodies (NTRB). 

LACHS will be able to charge fees for performing their functions. This proposal for the creation of LACHS appears to mirror native title representative bodies for the cultural heritage space. It is likely to increase the power of NTRBs which also become LACHS.

New tiered assessment system for minimal activities and low to high impact activities

The Bill introduces a tiered land use approvals system for activities which may harm Aboriginal cultural heritage. Broadly speaking, the approvals system requires:

  1. due diligence assessments to be conducted in respect of minimal impact activities;
  2. permits for low impact activities; and
  3. Aboriginal cultural heritage management plans for medium to high impact activities other than for certain categories of exempt activities. 

Exempt activities means:

  1. construction or renovation of a residential building or ancillary building on a lot that is less than 1,100 square meters; 
  2. development of a prescribed type carried out in accordance with the Planning and Development Act 2005
  3. a subdivision of not more than 5 lots in accordance with the Planning and Development Act 2005
  4. traveling on an existing road or track; 
  5. taking photographs for a recreational purpose; 
  6. recreational activities carried out on or in public waters or on a public place; 
  7. clearing of native vegetation in accordance with a clearing permit granted under the Environmental Protection Act 1986 Part V Division 2; 
  8. burning that is done for fire prevention or control purposes and by the FES Commissioner; 
  9. reploughing or reclearing an established firebreak; and 
  10. any other prescribed activities. 

Accordingly, any additional existing agricultural and farming uses are not exempt activities under the Bill but could later be prescribed as exempt activities under the regulations.

What constitutes minimal, low impact, medium or high impact activities are to be prescribed by regulations which have not yet been made available and will not be made available before the Bill is introduced.    

The process for obtaining a permit to conduct low impact activities includes: 

  • notifying the relevant LACHS (who can submit a statement of their views on the impact of the proposed activity on Aboriginal cultural heritage with a prescribed period); 
  • making an application for a permit to the ACHC in the approved form;
  • a public notification period inviting Aboriginal persons to make submissions within a prescribed period; and 
  • finally, a decision by the ACHC.

At this stage it is unclear how long it will take to obtain a permit given that draft regulations are not yet available. 

Medium to high impact activities can only be carried out under an approved Aboriginal cultural heritage management plan. The procedure for obtaining an approved management plan is as follows:

  • Consultation between LACHS and the applicant. The aim of consultation is for the applicant and LACHS to agree on a management plan. Agreement by LACHS to an ACH management plan must be an ‘informed consent’. If agreement is reached, the applicant may apply to the ACHC for approval of the plan. 
  • If the ACHC refuses to approve the plan, then the applicant may object to the Minister who will then decide whether or not the plan should be approved. 
  • If the applicant is unable to reach an agreement with the LACHS within the prescribed period, the applicant may apply to the ACHC for the authorisation of the ACH management plan by the Minister. 

Unlike existing consents granted under the AH Act, management plans will be able to be assigned with underlying land tenure and varied.

Aboriginal parties to an ACH management plan have a right to apply to the State Administrative Tribunal (SAT) for a review of the Minister’s decision. Similarly, proponents can apply to SAT for a review of the Minister’s decision to refuse to authorise an ACH management plan.

Offences

Part 7 of the Bill contains a stricter enforcement regime with a range of offences and increased penalties for harm caused to Aboriginal cultural heritage. A broad definition is given to the term ‘harm’ including an act which demonstrates disrespect for the importance of Aboriginal cultural heritage or that diminishes or otherwise affects the value of Aboriginal cultural heritage to Aboriginal people. 

Defences under the Bill include that the act which caused the harm was authorised or that a person undertook a due diligence assessment and took all reasonable steps to avoid or minimise the risk of harm. 

The Bill contains separate offences for when harm is material and serious. Offences of serious harm can attract a penalty of up to $10 million for a body corporate and up to $1 million or imprisonment for up to five years for an individual. These fines are larger than the maximum fine in other jurisdictions, for instance, in Queensland.

Transitional provisions – consents under the AH Act

The transitional provisions of the Bill provide that existing consents under the AH Act (including under section 18 of the AH Act) will continue to have effect in accordance with their terms. Applications made under the AH Act continue after the commencement of the new Act to be determined under the old section 18. Consents under section 18 of the AH Act which are given after the commencement of the new Act are limited in duration to a maximum period of five years. 

Protected areas

The Bill provides that areas that contain Aboriginal cultural heritage of outstanding significance may be declared protected areas. Similar to a class A reserve, a protected area order can only be revoked with a resolution passed by both houses of parliament. 

The Minister may give stop work orders, prohibition orders and remediation orders for the purpose of protecting Aboriginal cultural heritage. This brings Western Australia into line with other States such as Queensland and Victoria.

Stop activity orders

Under the Bill the Minister can make stop activity orders and prohibition orders to protect ACH from unauthorised harm. Stop activity orders and prohibition orders can be made even if permits or ACH management plans have been approved where new information has emerged since the permit was granted or the plan was approved about the significance of Aboriginal cultural heritage. 

The Minister can also make remediation orders for impacted Aboriginal cultural heritage to be restored to its original condition.

Practically we believe the current system of resource proponents and other land users entering into heritage protection agreements with representative Aboriginal groups and carrying out heritage surveys will continue in the interim with the additional overlay of the permit and management plan system. Over time we expect agreed management plans will take the place of heritage protection agreements.  

If you would like to know more or would like specific advice in relation to how the Bill could impact your business, please contact Paul Harley or a member of our Native Title and Cultural Heritage team. 
 
 

Authors
Jonathan Fulcher
Partner
Jonathan is a Partner and the head of our leading Resources and Energy practice in Brisbane and is also the leader of our Native Title practice.
Paul Harley
Partner
Paul is a Partner and the head of our leading Resources and Energy practice in Perth.
Liz Wreck
Associate
Liz is an Associate in our Resources and Energy practice.

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