Following the recent Juukan Gorge inquiry and the apology by Rio Tinto to the PKKP People, there has been intense speculation about what the long-proposed reforms to Aboriginal cultural heritage laws would look like. Now we know. Or at least, we have some idea.

On 2 September 2020, the WA Government released for public consultation the draft Aboriginal Heritage Bill 2020 (Aboriginal Heritage Bill) which will replace the Aboriginal Heritage Act 1972 (Current Act). And, perhaps unexpectedly, the proposed changes are significant. Here, we discuss the key proposed changes and what resources companies can expect next.

Summary: Aboriginal Cultural Heritage Permit & Aboriginal Cultural Heritage Management Plan

Under the Aboriginal Heritage Bill in its current form, proponents of resources projects will need to apply for an Aboriginal Cultural Heritage Permit (ACH Permit) or obtain approval of an Aboriginal Cultural Heritage Management Plan (ACH Plan) depending on the type of activity to be carried out. While s.18 consents and s.16(2) approvals issued under the Current Act will continue to be valid, the Minister can declare, on a case-by-case basis, that any granted consents or approvals are no longer valid.

The key changes for new and existing resources projects in WA include:

• the establishment of the Aboriginal Cultural Heritage Council (ACH Council) with broader powers than the existing current Aboriginal Cultural Material Committee, which it replaces;
• removal of “blanket” s.18 consents and replacement with a tiered approvals system depending on the type of activity to be carried out;
• a “continuous disclosure” obligation to report any new information in respect of Aboriginal cultural heritage;
• Ministerial powers to issue “Stop Activity Orders,” “Prohibition Orders” and “Remediation Orders”; and
• new offences for carrying out activities which harm, seriously harm or materially harm Aboriginal cultural heritage, for contravening the conditions attached to an ACH Permit or ACH Plan, or for providing false or misleading information. Read on for further detail about the proposed offences and penalties.

Key changes to the reform

Establishment of the ACH Council and Local Aboriginal Heritage Services

The administration of the Aboriginal Heritage Bill is vested in a newly-established ACH Council.  The ACH Council will have significant decision-making authority and broad powers under the Heritage Bill, such as advising the Minister in relation to Aboriginal cultural heritage matters and deciding whether to grant ACH Permits or approve ACH Plans for the carrying out of activities in areas where Aboriginal cultural heritage exists.

The ACH Council is also responsible for appointing a Local Aboriginal Cultural Heritage Services (LACHS) for each area of the State.  The Aboriginal Heritage Bill attempts to align more closely with the consultation process under the Native Title Act 1993 (Cth) by providing that the relevant native title party or prescribed body corporate for the area can apply for appointment as the LACHS. 

Under the Current Act, there is no obligation to consult the relevant Aboriginal parties in the area when proposing to undertake any work that may harm Aboriginal cultural heritage.  But under the Aboriginal Heritage Bill,  LACHS are responsible for facilitating the notification and consultation process under the Heritage Bill before an ACH Permit or ACH Plan may be granted. This is a significant change.  It is proposed that LACHS may charge a fee for services provided, but there is presently no guidance in this respect nor is there any requirement that those fees be reasonable. It is anticipated that these issues will be attended to in regulations, but there is presently no detail as to the form and content of regulation in this space, including whether there will be ‘caps’ or just ‘guidelines’.

Tiered Approvals System

Under the Aboriginal Heritage Bill, a preliminary requirement before applying for any heritage approvals is that a due diligence assessment is carried out to confirm whether:

• Aboriginal cultural heritage exists in the area;
• the impact of the proposed activities; and
• the identity of the person who should be consulted about those activities.

It is not yet clear exactly what is required in conducting this due diligence exercise: that information will be set out in the Aboriginal Cultural Heritage Management Code (ACH Code), which is yet to be drafted.  This detail is important:  due diligence carried out in accordance with the ACH Code will be a complete defence to each of the harm offences under the Heritage Bill, provided that a proponent also demonstrates that all reasonable steps were taken to minimise or avoid the risk of harm to Aboriginal cultural heritage.

It is a requirement that an ACH Plan is agreed between the proponent and the relevant Aboriginal party before “medium to high impact activity” is carried out. It is not yet clear what constitutes a “minimal”, “low” or “medium to high impact activity”, but we consider that exploration and mining activities will fall into the latter category. 

The Aboriginal Heritage Bill sets out notification and consultation requirements in relation to carrying out proposed activities. It is also a requirement that proponents use their “best endeavours” to reach agreement with the relevant Aboriginal parties on the terms of an ACH Plan.  Where consultation has already been carried out under an existing heritage or native title agreement, this may count under the new legislation.  

Proponents must apply to the ACH Council for approval of the ACH Plan, which must include an “ACH Impact Statement.”  The content requirements of this Statement is not set out in the Aboriginal Heritage Bill.  If the ACH Council forms the view that the cultural heritage within the area is of “State significance”, meaning of ‘exceptional importance to the cultural heritage of the State’, then it must refer the ACH Plan to the Minister for Aboriginal Affairs for authorisation. 

Stricter compliance and enforcement to the Aboriginal Heritage Bill

The Aboriginal Heritage Bill introduces a new requirement for any person who knows, or becomes aware, of any Aboriginal cultural heritage to report it to the ACH Council.  Continuous disclosure is also a condition of any granted ACH Permit, and all applications for approval of an ACH Plan must set out the processes to be followed if new information in respect of Aboriginal cultural heritage becomes known to the proponent.

The Minister may also give a “Stop Activity Order” to the holder of an ACH Permit or ACH Plan where new information has emerged in respect of Aboriginal cultural heritage.  Before issuing such an order, the Minister must be satisfied that actual harm or an imminent risk of harm exists to Aboriginal cultural heritage in the area.  If the activity which is the subject of a “Stop Activity Order” is ongoing, the Minister may issue a “Prohibition Order” if he/she thinks doing so is in the interests of the State. 

The Aboriginal Heritage Bill establishes new offences for committing harm or serious harm to Aboriginal cultural heritage.  “Harm” refers to the destruction or damage of Aboriginal cultural heritage, or carrying out any act in a manner that demonstrates disrespect of the importance of cultural heritage or diminishes, or otherwise affects the value of cultural heritage to Aboriginal people.  We consider this definition problematic given the potential for negligible harm to give rise to an offence under the Aboriginal Heritage Bill. 

On the other hand, “serious harm” is that which is irreversible, of a high impact, or of a wide-scale to or within a protected area, and which is neither trivial nor negligible.  It is a criminal offence under the Aboriginal Heritage Bill to occasion serious harm to Aboriginal cultural heritage.

There are other offences in the Aboriginal Heritage Bill, including for providing false or misleading information.  As an overall observation, we consider that the proposed penalties for those offences are significantly higher than in other Australian jurisdictions.  A summary of the proposed offences and penalties is set out at the end of this article.

What next?

The State Government has flagged its commitment to having Aboriginal Heritage Bill passed into law before the end of 2020.  Whether this will eventuate will depend somewhat on the submissions received from the public consultation process, which closed on 9 October 2020. 

The Aboriginal Heritage Bill provides for transitional arrangements, including that:

• the Minister will have discretion to declare that any valid s 18 consent of s 16(2) approval granted under the Current Act is no longer in force.  The Aboriginal Heritage Bill does not provide any guidance as to why or when the Minister might make such a declaration, nor on whether there will be any notice given (although presumably there will be at least consultation with the holder of such an approval); and
• s 18 approvals granted in the 12 months from the date when the Aboriginal Heritage Bill becomes law will only be valid for up to 5 years.

We will continue to monitor the progress of the Aboriginal Heritage Bill and provide further updates.

We have reviewed the Aboriginal Heritage Bill in detail and are available to provide advice on the proposed changes and the implications for your company.

Proposed offences and penalties under the Aboriginal Heritage Bill