On 8 August 2023, the Western Australian Government announced that it will repeal the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) that came into effect on 1 July 2023.
The WA Government will restore the original Aboriginal Heritage Act 1972 (WA) (1972 Act), with amendments aimed at ensuring that there is no further destruction of Aboriginal cultural heritage.
What was the ACH Act?
The ACH Act was the result of an extensive reform project developed following the destruction at Juukan Gorge in 2020. Its aim was to ensure that Aboriginal people were able to participate in decisions about activities that may impact their cultural heritage.
The ACH Act established a new system for landowners to seek approval for activities that may cause harm to Aboriginal cultural heritage.
A three-tiered system was established, to determine:
- the level of due diligence to be undertaken by a landowner; and
- whether a permit or management plan was required before conducting any activities on an area larger than 1100sqm.
The ACH Act also introduced:
- the Aboriginal Cultural Heritage Council (ACH Council), a statutory committee designed to provide advice and strategic oversight over the Aboriginal cultural heritage regime; and
- Local Aboriginal Cultural Heritage Services (LACHS), designed to operate as a single contact point for local Aboriginal people and proponents proposing to conduct activities in a specific area. However, no LACHS have been formally appointed since the introduction of the ACH Act.
Why is the ACH Act being repealed?
In announcing the restoration of the original cultural heritage laws, the WA Government acknowledged that the new legislation had caused confusion amongst landowners across the state and was too prescriptive and complicated to be workable.
The decision to restore the original 1972 Act with the addition of amendments to help prevent another Juukan Gorge incident was drawn from legal advice provided by the Solicitor-General.
The WA Government has given notice of the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023, but further timing is unknown.
What are the proposed amendments to the restored 1972 Act?
The WA Government has stated that the proposed amendments to the restored 1972 Act will be designed to provide further protection for Aboriginal cultural heritage. These amendments include:
- greater representation of Aboriginal people on the Aboriginal Cultural Material Committee established under the 1972 Act to make recommendations to the Minister for Section 18 approvals. This will be achieved by transitioning the ACH Council to take on this role, which includes a majority of Aboriginal persons;
- strengthening the Section 18 process, by providing Traditional Owners with review rights for ministerial approvals of activity that may damage cultural heritage, with clearer timelines, and an ability for the Premier to call-in a decision of ‘State Significance’ to act in the interests of all Western Australians;
- making it clear that 'gag orders' constraining Traditional Owners from disclosing heritage concerns will be unlawful; and
- imposing a requirement for proponents to notify the Minister if any new Aboriginal cultural heritage is discovered that may warrant a reconsideration of a Section 18 approval.
There will be no requirement on everyday landowners to conduct their own heritage survey. However, all landowners have a continued obligation to not knowingly damage an Aboriginal cultural heritage site (which is consistent with the 1972 Act).
Additionally, the WA Government has announced that it will:
- commence a long-term plan over the next 10 years to undertake heritage surveys in ‘high priority areas’ of the State and make these surveys publicly available;
- replace the cost recovery model for proponents who need to submit a management plan to the ACH Council with a fairer and simpler model (to be established with industry in coming weeks); and
- discontinue the concept of LACHS – instead, support will be provided to existing relevant Native Title groups, including the relevant PBCs, registered claimants or Native Title Representative Bodies, to improve capacity.