Aboriginal Heritage Act 2 – Boomerang To The Old Law… With A Twist

It may seem odd that the government has only paid “regard to the genuine concern” about the Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) after it came into force in July 2023 and not to the numerous complaints and petitions before that, but in an unexpected and mostly welcomed turn of events, the government has decided to repeal the ACH and will be reverting to the Aboriginal Heritage Act 1972 (WA) (AHA), albeit with a number of changes to “improve” it. 

Some of the amendments being made to the AHA include:

• Aggrieved native title parties and the owner of any land will be able to apply for a review of a section 18 decision, the only statutory right available to authorise impacts to “Aboriginal Sites”.

• Section 18 consent decisions will be published on the Department of Planning, Lands and Heritage’s website as soon as practicable.

• Any new information that comes to light about an Aboriginal Site on land where a section 18 consent is granted will have to be notified to the Minister immediately. 

• The Aboriginal Cultural Heritage Council will be re-branded as the Aboriginal Cultural Heritage Committee, maintaining the requirement for a majority Aboriginal membership, which will review section 18 consent applications and making recommendations to the Minister.

• Traditional Owners will no longer be allowed to be “gagged” by a contract or agreement between them and proponents from exercising their rights under section 18 of the AHA.

The return to the AHA means that the onerous Due Diligence Assessment (DDA) process set out by the ACHA no longer applies. However, this does not mean that no due diligence should be performed at all. There has long been an expectation to conduct due diligence, but these do not hold as much weight as it currently does under the ACHA.

While the AHA provides a defence against charges for damage to an Aboriginal site if the person “did not know and could not reasonably be expected to have known” about the Aboriginal site, what is considered “reasonably be expected to have known” is not clear. 

However, what is clear is that the primary objective of both the ACHA and the AHA is to protect Aboriginal heritage but until the ACHA is repealed, you are still bound by the DDA process under the ACHA.

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.