Today the WA Premier announced the repeal of the Aboriginal Cultural Heritage Act 2021 (WA) and a return to the Aboriginal Heritage Act 1972 (WA).

Key takeaways

• The ACHA will be completely repealed.
• The 1972 Act (which it replaced) will replace it, with some amendments to buttress the s18 process.
• Proposed (but presently undisclosed) enhancements to the 1972 Act will likely focus on mining and Government.
• No timing confirmed.

Amendments to the 1972 Act

Some ‘common sense’ and ‘effective’ amendments to the 1972 Act were promised in the coming weeks including:

• Government taking over responsibility for and control of conducting surveys in ‘high risk areas’ and will publish the reports.
• Approvals system will be limited to the s18 process with three key changes:
  •  1. The right of review for decisions to grant / not grant a s 18 will be extended to ‘Native Title parties’
  •  2. There will be a requirement to notify where new Aboriginal cultural heritage is discovered
  •  3. Gag clauses preventing traditional owners from speaking out and objecting to the s18 process will be unlawful. 
• There will be ‘support’ for ‘relevant Native Title’ groups to improve their capacity to work with Government and industry.
• Greater representation of Aboriginal people on the Aboriginal Cultural Materials Committee (which commences the s18 process).

ACHA repealed

The ACHA will be completely repealed, with apparently no core structural concepts surviving. The Premier and Minister Buti specifically noted that due diligence assessments, activity tiers, LACHS, and approvals frameworks will all be abandoned.

The Premier and Minister Buti explained the legislative capitulation by claiming that the ACHA, intended only as a response to Juukan Gorge (despite the Act being largely formed prior to the incident) was ‘wrong’.

Key questions arising from the announcement

1. Timing
No firm comments were made on timing, leaving all stakeholders guessing.  Many organisations, including proponents, knowledge holders and native title parties implemented changes to heritage agreements and protocols prior to the ACHA commencing to ensure legislative compliance.  The Government has apparently maintained its indifference to extant negotiations that frustrated many parties during the ACHA’s prolonged rollout. 

2. Government conduct of surveys
The comment that Government would assume responsibility for surveys in high risk areas and publish the results raises more questions than answers, for example:  

(a) is ‘high risk’ determined by the risk of cultural heritage, to project delays, or to ground disturbance?
(b) have knowledge holders been consulted on the publication of reports including potentially sensitive heritage information?
(c)  Aboriginal cultural heritage is not always a stagnant concept – will there be provision to verify the currency or accuracy of reports over time, and if so, who is responsible for that?

3. Aboriginal representation
A key feature of the ACHA was its placement of Aboriginal people at central points in the management and protection of cultural heritage.  It appears that the new plans abandon that approach, notwithstanding the Premier’s vague comment that representation on the ACMC will be increased.

4. Interaction with the EPA and social surrounds
To the extent that the ACHA was intended to reduce the compliance burden arising from the EPA and social surrounds requirements, this new approach will have the opposite effect.  This is perhaps unsurprising given the EPA was, at best, equivocal in respect of the ACHA’s capacity to do so. 

5. Who are the ‘relevant Native Title’ groups?
The Premier and Minister Buti promised support to relevant Native Title groups to improve capacity, and that Native Title party’s would have the right of review to challenge s18 approvals.  The Premier’s announcement which followed the press conference this morning refers to “the relevant prescribed body corporate, registered claimants or native title representative bodies”.  It is not clear whether the term was intended to reflect the ACHA’s defined terms of “native title party” and “Aboriginal party” which extended beyond just those that held Native Title rights (for example, groups such as the Noongar regional corporations who are party to certain ILUAs).  Prompt clarification on this point is necessary given that cultural heritage can exist in a given area regardless of whether native title rights also exist in that area.