WA's Aboriginal Cultural Heritage regime – Back to the future: what the repeal means

The Aboriginal Heritage Legislation Amendment and Repeal Bill: what it does

The Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (WA) was introduced to WA Parliament on Tuesday.

If the Repeal Bill is passed, we will return to the old system of managing and protecting Aboriginal cultural heritage. This means: a narrower definition of heritage ("Aboriginal site"); a Committee that determines whether a place meets the legal definition of an "Aboriginal site" and receives the protection of the Act; an approval process whereby the Minister is responsible for granting consent to use land where doing so will damage Aboriginal heritage if it is in "the general interest of the community"; and an approval that is tied to a specific owner of land and cannot be transferred.

The Repeal Bill repeals the ACH Act and Regulations and reinstates the previous Aboriginal Heritage Act 1972 (WA) with several new amendments:

1. Defined "native title part[ies]" will have the same rights as proponents to apply to the State Administrative Tribunal for review of a section 18 decision where "aggrieved".
2. The Premier will have the ability to 'call in' a section 18 appeal which is deemed to be of State or regional significance.
3. Section 18 consents will be published on the Department's website.
4. If an owner becomes aware of new information about an Aboriginal site on their land after a section 18 consent is granted, the owner will be required to notify the Minister of this new information.
5. It will be illegal to have 'gag orders' which constrain Traditional Owners from objecting to proposals or section 18 consents.
6. The Aboriginal Cultural Heritage Council created under the ACH Act will continue, taking on the role of the Committee under the 1972 Act (previously known as ACM Committee). Unlike the ACM Committee, the Council is required to have 2 chairpersons and a majority of members of Aboriginal descent.

The WA Government has announced it will commence a 10-year plan to undertake heritage surveys on "unsurveyed areas in high priority areas of the State, with the consent of landowners". The Government will be responsible for publishing these surveys, making them publicly available. The stated intent is to shift the burden of conducting surveys away from landowners and proponents to the Government, at least for these high priority areas. It is unclear which areas are to be classified as high priority or how much of the State will be covered.

The Local Aboriginal Cultural Heritage Services created under the ACH Act will no longer exist. Already allocated funding will be provided to existing Native Title organisations (including relevant prescribed body corporates, registered claimants or native title representative bodies) to improve their capacity.

The cost recovery model implemented by the Aboriginal Cultural Heritage (Cost Recovery) Regulations 2023 (WA) will also be replaced by what the WA Government describes as a "simpler and fairer" cost recovery model in the coming weeks.

Impact on offences and defences

The WA Government's recent media releases have suggested that a key difference in the reinstated 1972 Act, as compared to the ACH Act, is that it will ensure that landowners will not commit an offence if they did not know about the Aboriginal heritage disturbed. This is a reference to the 'lack of knowledge defence' in section 62 of the 1972 Act.

In our view, the media statements have tended to overstate the protection provided by this defence. Section 62 says a landowner who damages an Aboriginal site will have a defence if they can prove that they "did not know and could not reasonably be expected to have known" the place or site was of Aboriginal heritage. The central premise of the ACH Act and the 1972 Act are the same – that Aboriginal cultural heritage is to be protected whether or not it has been previously identified or registered. The defence does not allow a landowner to be wilfully blind to the existence of Aboriginal heritage. Landowners will still need to take reasonable steps to ensure they are aware of any heritage on their land and in many cases, this may still involve conducting a heritage survey. Arguably, what constitutes "reasonable steps" under the old 1972 Act is less clear than is the case under the ACH Act.

Impact on due diligence

It has been suggested that due diligence will no longer be required once the ACH Act is repealed.

While it may be the case that the Due Diligence Assessment (DDA) process set out in the ACH Act's Management Code will no longer apply, that does not mean that no due diligence is required. There have long been Due Diligence Guidelines associated with the 1972 Act which landowners were encouraged to follow to support compliance. The difference is that:

1. these guidelines do not have legal weight;
2. the requirements of the due diligence process are much less clearly defined than under the ACH Management Code; and
3. there will no longer be the same clarity of legal protection for a person who has undertaken DDA (whereby a person can take, as a matter of law, that there is no risk of harm to heritage when specified steps are followed).

The previous 1972 Act Due Diligence Guidelines suggested that landowners undertake one or more of the following steps including: assessing the landscape where the activity will be undertaken and assess any potential impact to the landscape, search the Aboriginal Heritage Inquiry System, consult with Native Title holders / claimants in the area, agree on a heritage survey with relevant Native Title parties, or undertake other heritage management strategies. It is unclear whether more contemporary Due Diligence Guidelines will be released for the reinstated AH Act and whether some aspects of the ACH Management Code could be incorporated.

The new right of review for Aboriginal parties

It is unclear how the new right of review for native title parties will impact the approvals process under the 1972 Act, and whether this could cause significant additional delays for project approvals (going through the section 18 consent process and then possibly an appeal). No statutory timeframes have been released for this review process, but provision is made for them to be prescribed in regulations. Appeals are subject to a new section 18A call-in power by the Premier if the Premier considers an application to raise issues of State or regional importance.

Do you need to do a heritage survey?

The Government's media statements have also indicated that "everyday landowners" will not be required to conduct their own heritage surveys going forward.

The basis for this statement remains unclear. Heritage surveys are necessary (under the ACH Act and the 1972 Act) if there is a risk that Aboriginal cultural heritage could be damaged by a proposed activity, whether because there is potential for heritage to exist in a location that has not previously been surveyed, more information is needed about known or suspected heritage to determine how to avoid or protect the site, or for the purposes of a section 18 consent application.

It is unclear why surveys would not still be necessary in these circumstances under the reinstated 1972 Act. As noted above, the section 62 "lack of knowledge" defence does not operate to allow a person to wilfully ignore whether there is heritage on their land. The Government's proposal to undertake surveys in high priority areas over the next 10 years may assist in the long term, but will not assist proponents looking to undertake activities in the short-term, or those falling outside the "high priority areas".

Dual assessment under Aboriginal Heritage and Environmental Protection Act

One of the issues that has been problematic over the last few years from a project approval perspective, is the duplicative regulation of Aboriginal cultural heritage under the 1972 Act/ACH Act and the EPA's assessment of social surroundings under Part IV of the Environmental Protection Act 1986 (WA). We suspect that with the repeal of the ACH Act and return to the 1972 Act, the EPA will look to increase its role in the regulation of heritage matters.