Western Australian Aboriginal heritage law reform amendments passed but still much work to do

What you need to know

• The new Aboriginal Cultural Heritage Act 2021 (WA) was assented to in December 2021 and limited parts are now operational.
• The Act proposes a modern approach to protecting Aboriginal cultural heritage in Western Australia that will fundamentally transform how Aboriginal cultural heritage is identified, protected and managed.

• Key features of the Act include:
  • a new definition of Aboriginal cultural heritage
  • new structures that empower Aboriginal voices in the management of Aboriginal cultural heritage
  • a new tiered land use assessment and approvals system that focuses on consultation and agreement making between traditional owners and land users

What you need to do

• Proponents operating in Western Australia need to take stock and plan for the transition from the current to the new regime. Navigating the heritage landscape in project development in WA is going to get more complex over the next 12-24 months.
• Where appropriate, provide submissions on the co-design process, which is responsible for developing the regulations, statutory guidelines and operational policies to support the new Act.
• Keep a watching brief on Federal environment and heritage law reform and how State processes are managed.  Regulatory (and policy) change in this space will no doubt continue to shift additional burdens to proponents that will need to be understood and implemented.

The final version of the new Aboriginal Cultural Heritage Act 2021 (WA) was assented to in December 2021 and limited parts are now operational.  There is no date yet for the remainder of the Act to commence, as the regulations, statutory guidelines and operational policies required to support the new Act remain subject to further development. 

The Act proposes a modern approach to protecting Aboriginal cultural heritage in Western Australia that will fundamentally transform how Aboriginal cultural heritage is identified, protected and managed.

Key features of the Act include:

• a new definition of Aboriginal cultural heritage
• new structures that empower Aboriginal voices in the management of Aboriginal cultural heritage
• a new tiered land use assessment and approvals system that focuses on consultation and agreement making between traditional owners and land users.

Proposed new framework for management of Aboriginal cultural heritage in WA

New definition of Aboriginal cultural heritage

The Act provides a new definition of Aboriginal cultural heritage that moves beyond the current focus on sites and artefacts and captures the diverse perspectives of cultural heritage, including its tangible and intangible elements.  The concept of cultural landscapes has also been introduced for certain limited purposes.

New management structures

The Act provides for the establishment of a new Aboriginal Cultural Heritage Council (ACH Council) as the peak strategic body for Aboriginal heritage, and for the appointment of Local Aboriginal Cultural Heritage Services (LACHS) to provide Aboriginal heritage services for discrete areas of the State.

The ACH Council's functions include deciding applications for ACH permits, determining whether to approve or refuse most Aboriginal cultural heritage management plans (CHMPs), making recommendations to the Minister about the making of protected area declarations, or whether the Minister should authorise CHMPs that are not agreed between proponents and LACHS.

LACHS, representing the knowledge holders for certain areas, are intended to operate as a single contact point and one-stop-shop for local Aboriginal people and proponents in their area. Their functions include facilitating notification and consultation with traditional owners in the area, arranging heritage surveys, facilitating the development and implementation of CHMPs and supporting the Council.

New tiered assessment and approval system

The Act introduces a new tiered assessment and approval system that considers the type of proposed land use activity, and prioritises notification and consultation with Aboriginal people with a focus on agreement making.

Before carrying out activities, proponents will be required to undertake a due diligence assessment in accordance with a management code (to be developed) to determine whether the proposed land use will impact Aboriginal cultural heritage and the likely level of impact.   Depending on the category of activity, notification, consultation and negotiation with Aboriginal people may be required (via the LACHS, if one has been appointed in respect of the relevant area).

There are four categories of activities (although detailed definitions for some of the following are preserved for regulations that are not yet prepared): 

• exempt activities
• Tier 1 Activities (for which no approvals are required to proceed)
• Tier 2 Activities (for which an ACH permit is required, before proceeding)
• Tier 3 Activities (for which an ACH management plan is required, before proceeding)

Proponents for Tier 2 Activities are required to notify Aboriginal parties and seek their comments before applying to the Council for an ACH permit.  Council decisions on ACH permit applications are reviewable by the Minister on application of either the proponent or Aboriginal parties.

For activities requiring a CHMP, proponents will be required to consult with Aboriginal parties in accordance with consultation guidelines (to be prepared) with a view to negotiating an agreed CHMP.  Where agreement cannot be reached within a prescribed period and with both parties using best endeavours to negotiate, the Council may act as mediator and may ultimately propose its own plan for the Minister's authorisation if agreement still cannot be reached.  

As part of Phase 1 of the co-design process, the Aboriginal Cultural Heritage Reference Group released a 'Draft Activity Table' to facilitate discussion on the types of activities that will be included in the finalised Activity Category list.  

Grandfathering of existing section 18 consents and section 16 authorisations

Existing section 16 authorisations and section 18 consents that remain in force will be grandfathered in the new Act (with section 16 authorisations having the same effect as an ACH permit, and with section 18 consents having the same effect as an approved CHMP).  However, timelines will be applied to those grandfathered approvals and they can expire in various circumstances, with grandfathered section 18s expiring after 10 years unless the purpose for which they were granted has substantially commenced and the proponent makes an application for the s18 to not expire.

Approvals are defeasible, and can be cancelled or suspended – or stop orders and prohibition orders issues – if "new information" comes to light about the heritage the subject of the approval

In a move that will set the absolute highest bar amongst all Australian state regimes for protection for Aboriginal heritage, ACH permits, approved or authorised CHMPs will all be capable of being cancelled or suspended, or will be capable of being rendered of no use through the imposition of stop orders, if "new information" about heritage comes to light after the date of the relevant approval, in some circumstances.  

The Act also provides for remediation orders for remediation work to be undertaken to restore impacted Aboriginal cultural heritage to its original condition.

New offences and tougher penalties, and enhanced compliance and enforcement tools

The Act establishes significant new offences for harm to Aboriginal cultural heritage, with significantly higher penalties.  

Issues to note with the Act

The Act sets out a structure and approvals pathway that, in conceptual terms, stakeholders were largely expecting.  However, the Act introduces a level of complexity and uncertainty that, in our opinion, renders key aspects of the Act unworkable. 

There are three primary factors for this/issues:

• Capacity of LACHS: There remains a significant risk around the appointment of LACHS, whether they will be able/wiling to function efficiently, whether they have the corporate/administrative capacity to function efficiently, and whether they will have the resourcing to skill up and ultimately discharge their functions.  Without properly appointed, and properly functioning, LACHS, the new regime faces massive hurdles.  The Act does contain a new funding application process, through which LACHS can make applications for funding from the ACH Council.  Critical to whether this works is how the State will implement that process, and – fundamentally – whether the State will make enough funding available.  It will be incredibly costly.  

• Regulations, policy and guidance materials are still not yet known. The regulations, statutory guidelines and operational policies required to support the new Act remain unfinished.  The State has appointed the Aboriginal Cultural Heritage Reference Group to oversee a co-design process with Aboriginal people and other stakeholders and prepare the guidance materials.  The first phase of co-design is now complete, with the second phase to commence in July 2022.  At this stage, the Reference Group has only produced a series of 'fact sheets', which (in essence) only put forward questions and discussion topics to enable Aboriginal people and other stakeholders to provide submissions. Phase 2 will provide more substantive materials.

• Best endeavours to negotiate CHMPs.  The Act imposes a best endeavours obligation on parties to negotiate CHMPs.  Unlike the "good faith" language in the Native Title Act's right to negotiate process, "best endeavours" has its own meaning at law, and particularly in the context of commercial negotiations and bargaining.  How the obligation plays out in practice will likely be challenging.

Cultural heritage reference group appointed

At the time the Bill was being progressed through WA Parliament, the Minister flagged establishing a 'co-design' task force (involving Traditional Owners, industry and government) to consider the regulations, and other documents and guidelines that will need to be in place to support the Act.

In February 2022 the State appointed the Aboriginal Cultural Heritage Reference Group, which comprises four members representing the Aboriginal community, industry and government: with two Aboriginal community leaders as the Aboriginal community representatives; the Manager for Resource Development and Sustainability at the WA Chamber of Minerals and Energy (CME) as the industry representative; and the Director General for the Department of Planning, Lands and Heritage as the government representative.

The Minister commented that "consultation and engagement with Aboriginal people and other stakeholders will continue with a focus on the co-design of key documents that will support the ACH Act", and that "The ACH Reference Group's first task will be to create a co-design process that ensures all interested stakeholders have an opportunity to take part in this significant reform".

As mentioned above, the first phase of co-design is now complete, with the second phase to commence in July 2022.  At this stage, the Reference Group has only produced a series of 'fact sheets', which (in essence) only put forward questions and discussion topics to enable Aboriginal people and other stakeholders to provide submissions.  

The State has indicated that the co-design process will take 12 months to complete.  We consider it is likely to take at least 24 months, as the Reference Group faces an incredibly challenging job, given the ongoing opposition to the Acts introduction.  In the face of those challenges, the Reference Group will need to operate incredibly effectively given their outputs will fundamentally shape the complexity of the new regime.

Next steps

There is currently a 12 month anticipated transition period (although that process will, in our view, take longer).

Proponents need to take stock to plan for the transition of the current regime to the new. Navigating the heritage landscape in project development in Western Australia is going to get more complex over the next 12-24 months.

Where appropriate, proponents should provide submissions on the co-design process and the development of the regulations, statutory guidelines and operational policies to support the new Act.

Stakeholders should also maintain a watching brief on environmental law reform and Federal heritage reform.  With the Commonwealth's final report on heritage recommending such fundamental reform to Federal environment and heritage protection laws, and the State and EPA still continuing to bring the streams together when it comes to environment and heritage regulation, the ongoing reform of the regulatory landscape will no doubt continue to place additional burdens to industry that will need to be understood and implemented.

Authors: Andrew Gay, Partner; Cheyne Jansen, Counsel and Sam Gillis, Senior Associate.