WA’s ‘new’ Aboriginal Heritage Act 1972 (AHA) has been introduced to Parliament.  Many questions remain unanswered. However, the key issue is the extent to which the WA Government’s position on heritage protection has changed, and how that will be reflected in forthcoming amended regulations and policy which determine how the AHA will operate.

The WA Government touted the Aboriginal Cultural Heritage Act 2021 (ACHA) as a long overdue modernisation of the outdated AHA.  However, Minister Buti’s second reading speech ended by claiming that the 1972 Act “was well ahead of its time”, and that the amended AHA improves the 1972 position.  This claim notably falls short of asserting that the amended AHA is ahead of its time, or on par with the ACHA.

The key changes were outlined in our previous update:  The days of future past: WA Aboriginal Cultural Heritage Act to be repealed 5 weeks after commencement.  This note considers further information released since the initial announcement to repeal the ACHA.

What has not changed since the ACHA?

• Subject to the forthcoming regulations, it appears that the substantive approach to heritage protection will revert to ‘pre-ACHA’ practice.
• Existing s 18 permits remain valid, provided they haven’t already expired in accordance with their terms.
• Existing ESG expectations suggest that to retain one’s social licence, enhanced engagement and consultation with Native Title parties is required.

What is changing under the AHA?

What is a “native title party?”

The new AHA adopts the same defined term “native title party” as the ACHA but with one key change.  Native Title parties will include Native Title holders, registered claimants, regional corporations and other bodies under ILUAs and settlements. 

The key difference is a new category being “a prescribed person of a prescribed class”.  Of course, the absence of Native Title rights does not necessitate the absence of Aboriginal cultural heritage or persons who speak for Country.  This definition may in the future accommodate knowledge holders - the core consultation groups under the ACHA.

Native Title parties can appeal s18 decisions

The right to appeal s18 decisions to the State Administrative Tribunal has been extended to Native Title parties.  The Bill simply inserts “native title parties” into s 18(5), so it is the same right that has been available to ‘landowners’ since 1972.  The promised funding for Native Title parties will be important to ensure practical access to this right.

The prohibition on ‘gag clauses’ includes any clause that prevents a Native Title party from appealing a s18 decision, commencing proceedings in relation to a matter arising under s18, or being heard or making submissions relating to the performance of a function under s 18.

New information and s18 approvals

All s18 consents will be subject to a condition that the Minister must be notified of new information about Aboriginal cultural heritage.  Upon notification, the Minister is then compelled to amend, revoke, replace or confirm the s18.

The Minister is not compelled to do anything if they become aware of the new information in a way other than through notice from a ‘land owner’.  It seems therefore that if an Aboriginal party notifies the Minister, there is no compulsion to act.  This is surprising given the government’s insistence that WA’s heritage reforms were intended to prevent another Juukan Gorge scenario.

For s18’s granted:

• before 23 December 2021, the condition is to notify the Minister if the owner becomes aware of new information on or after 1 July 2023;
• after 23 December 2021 but before 1 July 2023, the condition is to notify the Minister if the owner becomes aware of new information on or after 23 December 2021 (which was already the position under the current s18(6) AHA); and
• after 1 July 2023, the condition arises upon grant.

Premier’s “call-in” power

The Premier may now intervene in a s18 appeal to SAT by determining it themselves or directing SAT to hear the matter and make a recommendation to the Premier.  The power is enlivened where the Premier considers the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by them.  According to Minister Buti’s speech, this is intended to operate similarly to the power in the Planning and Development Act, but the detail remains to be seen.

Timeframes

New amendments allow regulations to prescribe timeframes for the s18 process and the Premier’s call-in power.  The timeframes have the potential to increase project certainty, and the funds promised to Native Title parties can ensure that such timeframes are not burdensome.

What may yet change under the AHA?

The Minister and Premier have significant discretion under the new AHA, and many operative aspects are being left to the regulations (yet to be released).  Therefore, the way in which the AHA operates in practice can be heavily influenced by the government of the day.

We await further information on how the Government intends to assume responsibility for surveying ‘high risk’ areas and the promised support and funding for Native Title parties.

Will there be enhanced consultation requirements?

Although not a legislative requirement, the existing s18 process examines the extent of consultation with Aboriginal parties.  In addition, the ACHC may make its own rules with respect to its functions, which include progressing the s18 process.

Minister Buti’s speech stated that he expects landowners to “continue to engage in meaningful consultation with the relevant Aboriginal people to ensure their input is considered about how Aboriginal site will be protected or managed. This expectation will be outlined in policy.” 

That policy may require similar consultation to s101 of the ACHA’s and the Consultation Guidelines.  Together with the ability to prescribe “certain persons of a certain class” to access the increased rights of “Native Title parties”, it would not be surprising to see a requirement to consult with knowledge holders re-emerge in some form.

Will the s62 defence operate differently?

Despite the comments of some industry groups prior to the ACHA’s repeal, it has been an offence to interfere with Aboriginal sites or objects since 1972.  There has also been a defence where the person could not have reasonably known there were Aboriginal sites or objects present.  It was accepted that the defence was activated by conducting surveys and obtaining ‘clearances’.  However, what is considered ‘reasonable’ could now be determined by regulations or perhaps policy.

Why was the long title of the AHA amended?

A potentially under-looked change is the amendment of the AHA’s long title.  In plain language, the long title (and to an extent, the purpose of the AHA) is changing from an Act to provide for the approved harm of Aboriginal heritage, to an Act to provide for the preservation of Aboriginal heritage.

When Courts determine the meaning of legislation, they often consider the purpose of the legislation, and whether a certain interpretation is consistent with that purpose.  In the absence of an ‘objects’ clause (see ss 8-10 of the ACHA), Courts often look to the long title of a statute to elucidate its purpose.

Accordingly, the meaning of certain sections may be recoloured.  For example, what is ‘reasonable’ for the purposes of s62 may now mean enhanced consultation and engagement with Aboriginal people.