Same but different: The Aboriginal Heritage Act

As foreshadowed in our previous article on the matter, the Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) is repealed as the Aboriginal Heritage Legislation Amendment and Repeal Act 2023(WA) was assented to by the WA Governor on 24 October 2023. This means we are now back to the original Aboriginal Heritage Act 1972 (WA) (AHA) albeit with several significant changes.

One of the changes made to section 18 of the AHA is that “the owner of any land” (Landowner) which is subject to a section 18 consent must notify the Minister within 21 days of becoming aware of new information of activities on the land that would likely result in damage or destruction of Aboriginal sites. To fail to do so would be an offence.

The Minister must reconsider the consent if notified by the Landowner of this information, and only may reconsider the consent if notified by any other means. In any circumstance, the Minister maintains the power to suspend, confirm or amend the consent amongst other powers.

New legislation has been inserted to the AHA to allow the Premier to determine an application if it raises an issue of State or regional importance as well as provide for the requirement to notify the Minister within 14 days if there is a change in ownership of a land that is subject to section 18 consent. 

But what does this all mean for you?

Heritage agreements with native title parties based on the ACHA may require renegotiation and amending to ensure they now work under the amended AHA.

If you were granted any Aboriginal Cultural Heritage permits or managements plans before 15 November 2023, these will be treated as section 18 consents instead. Similarly, if you have any pending applications for an ACH permit or management plan made before 15 November 2023, these will be treated as notices given to the Aboriginal Cultural Material Committee for the application of a section 18 consent.

If you are a Landowner, you are also expected to continue to engage in meaningful consultation with native title parties to ensure that Aboriginal sites are protected or managed. 

The government has a Heritage Survey Assistance Program to offset the increasing cost of conducting Aboriginal Surveys. Unfortunately, it appears they have made this program only available to mining prospectors and explorers and not all Landowners.

If you need any further information, Brian Liau of Granich Partners can provide advice to you and your business to assist in mitigating any risk in breaching the AHA.

Due to its general nature, this information is not intended to be legal advice. You should not act without first obtaining advice specific to your circumstances.