WA Aboriginal Cultural Heritage Act 2021 repealed - what happens now

In early August, the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (Repeal Bill) was introduced to the Western Australia Legislative Assembly to repeal the controversial Aboriginal Cultural Heritage Act 2021 (ACH Act) and associated regulations.

After several months of legal uncertainty, Part 2 of the Repeal Bill, which affects the repeal of the ACH Act, came into effect on Wednesday, 15 November, 2023 and resulted in the reintroduction of a revised version of the Aboriginal Heritage Act 1972 (AH Act), bringing much needed clarity to all parties involved in land use.  

What you need to know

From 15 November 2023 onwards, Western Australia will revert to operating under the old AH Act, as amended by the Repeal Bill.

Authorisations to impact Aboriginal sites will revert to the less complicated section 18 consent process (with some changes noted below), departing from the activity-matrix based Aboriginal Cultural Heritage Permits (ACH Permits) and Aboriginal Cultural Heritage Management Plans (ACHMPs) system under the ACH Act. Existing ACH Permits and ACHMPs will automatically transition to section 18 consents.

The scope of protected Aboriginal heritage will revert from the broader formulation under the ACH Act to the well understood definitions of Aboriginal sites and Aboriginal objects under the AH Act. It is important to note that what constitutes an Aboriginal site will still extend to places of importance and significance to Aboriginal people, or places associated with Aboriginal people, regardless of whether a particular site is a registered site (and visible on DPLH's heritage inquiry system ACHIS) or not.

Key takeaways - The revised section 18 consent process  and more

The bolstered AH Act will introduce several new changes, which include:

• Section 18 consents will now be transferrable and 'run with the land'. If a change in land ownership occurs, the landowner must notify the Minister of the change within 28 days to avoid a $1,000 fine.
• Owners of land to which a section 18 consent relates will have an ongoing obligation to notify the Minister of any "new information" concerning the Aboriginal site the subject of the section 18 consent. On the receipt of any new information, the Minister will have the power to suspend or impose further conditions on the section 18 consent. Importantly, this obligation extends to existing section 18 consents (those granted pre-ACH Act and ACHMPs/ACH Permits converted to section 18 consents).
• Native title parties will have the same rights as proponents to apply to the State Administrative Tribunal for review of a decision in relation to a section 18 consent.
• The outcome of section 18 consent applications will be published on the website of the WA Department of Mines, Industry Regulation and Safety.
• Clauses in agreements which prevent or restrict native title parties from objecting to or being heard in proceedings in relation to section 18 consent applications (so called 'gag clauses') will be voided.
• The Premier will have a special power to call in a SAT review of a section 18 consent decision where the matter is of State significance or regional importance.
• The Aboriginal Cultural Heritage Council created under the ACH Act will continue, taking on the role of the former Aboriginal Cultural Material Committee (ACMC) established under the AH Act. Unlike the ACMC, the Council is required to have two chairpersons and a majority of members of Aboriginal descent who have the appropriate knowledge and experience to consider section 18 consent applications.
• The prescriptive guidelines and processes made under the ACH Act (including the ACH Management Code, ACH Investigation Guidelines, ACH Survey Report Guidelines and ACH Knowledge Holder Guidelines) will cease. New guidelines and policies will be released to assist proponents in complying with their obligations under the AH Act as amended. The guidelines and policies will continue to endorse consultation with native title parties as a best-practice approach for the management and protection of Aboriginal heritage.

Aboriginal Heritage Survey Assistance Program – rebates for heritage surveys

In addition to the Repeal Bill, the State Government recently announced an Aboriginal Heritage Survey Assistance Program which will provide assistance to the mining industry to partially offset the increasing costs of conducting Aboriginal Heritage Surveys. The holder (or their designated tenement consultant) of a prospecting licence or exploration licence may apply for a rebate of a portion of the tenement rent to cover heritage survey costs incurred on the tenement.

To discuss how the transition back to the AH Act may affect you, please contact our Energy and Resources team.

Authors

Paul Harley | Partner | +61 8 9404 9130 | pharley@tglaw.com.au

Brianna Wallace | Lawyer

Charlie Mitchell | Law Graduate