Round Two: the repeal of the Western Australian
Aboriginal Cultural Heritage Act 2021
On 9 August 2023, the second reading speech for the repeal of the Aboriginal Cultural Heritage Act 2021 (WA) was heard before parliament, which proposed to reinstate the previously repealed Aboriginal Heritage Act 1972 (WA).
This article highlights the key changes proposed to the original Aboriginal Heritage Act 1972 (WA), and the practical implications for Aboriginal groups, local Aboriginal land councils, private entities, landowners and other key stakeholders.
There has been significant commentary on the Western Australian Government’s (the Government) Aboriginal Cultural Heritage Act 2021 (WA) (2021 Act). In response, the Government has decided to repeal the 2021 Act (despite it only coming into effect on 1 July 2023) and revert back to the previously repealed Aboriginal Heritage Act 1972 (WA) (Original 1972 Act) with some amendments (Amended 1972 Act). The changes proposed are aimed at strengthening the role of Aboriginal people in the process of determining section 18 consents and creating new notification requirements to provide greater protections to items of Aboriginal cultural heritage.
To find out more about the 2021 Act, read our previous article on the introduction of the Western Australian Aboriginal Cultural Heritage Act.
The amendments proposed by the Amended 1972 Act seek to improve the Original 1972 Act in four key ways.
1. Extends the right of review of a section 18 decision
Section 18(5) of the Original 1972 Act provided a landowner who is aggrieved by a minister’s section 18 consent decision with the right to apply to the State Administrative Tribunal (SAT) for a review of that decision. However, such rights did not extend to native title parties who have Aboriginal sites that may have been impacted by the section 18 consent.
The 1972 Amended Act proposes to amend section 18(5) of the Original 1972 Act so that native title parties who are aggrieved by a decision of the minister under a section 18 consent can apply to SAT for a review of the decision. The term native title party is proposed to be defined in the new section 18(1AA) as encompassing a number of entities, including:
- a registered native title body corporate for the land;
- a registered native title claimant for the land;
- a person who was a registered native title body corporate or claimant but either; surrendered their rights under an Indigenous land use agreement (ILUA) or had their rights extinguished;
- a regional corporation if the land is subject to a settlement ILUA; and
- a prescribed person or class of persons.
These changes expand those who can request a review of a section 18 decision and aim to increase the protection measures available for Aboriginal cultural heritage.
Proponents seeking section 18 consents should be mindful of this review process and seek to consult fulsomely with native title parties and amend projects to consider the native title party’s concern to avoid the possibility of having a granted section 18 consent reviewed.
2. Introduces ongoing notification obligations
As with the 2021 Act, notification obligations will be introduced into the Amended 1972 Act. Section 18(6) of the Original Act has been repealed and replaced with a new section 18(6) in the Amended 1972 Act. The new section 18(6) extends this notification obligation to require that a landowner notify the minister if they became aware of any information after 1 July 2023 about an Aboriginal site on land subject to a section 18 consent that was granted prior to and after 23 December 2021.
Section 18(7) has also been introduced to allow the minister to amend the conditions of a section 18 consent, revoke the consent or confirm the consent based on the information which may be provided to them under a section 18(6) notification.
Practically speaking, if implemented, these amendments would place specific obligations on landowners to notify the minister and allow the minister to respond promptly to new information about Aboriginal cultural heritage sites. Proponents should be mindful that this means, as with the 2021 Act, section 18 consents can be suspended or cancelled, so ensuring that proper cultural heritage surveys and assessments are undertaken prior to seeking a section 18 consent, are imperative to mitigate this risk.
3. Nullifies any provision in a contract or agreement that prohibits a native title party from seeking to be heard for an application for a section 18 consent
Section 18(5A) of the Amended 1972 Act proposes to introduce an entirely new provision which was not included in the Original 1972 Act. Section 18(5A) seeks to nullify any provision in a contract or agreement between proponents and Aboriginal parties which attempts to prohibit a native title party from exercising its rights under section 18, including by voicing an objection, engaging with the Aboriginal Cultural Heritage Committee or making an application for review.
4. Ensuring greater representation of Aboriginal people in the Aboriginal Cultural Heritage Committee
Part 5 of the Original 1972 Act which sets out the structure and responsibilities of the Aboriginal Cultural Material Committee, now named the Aboriginal Cultural Heritage Council, will also be amended by the Amended 1972 Act. Section 29 of the Amended 1972 Act intends to transfer the membership requirements of the Aboriginal Cultural Heritage Council created under the 2021 Act to the Aboriginal Cultural Heritage Committee (ACHC) under the Amended 1972 Act. In effect this would require, as far as practicable, that the majority of members of the ACHC be of Aboriginal descent and that the gender composition of the Committee be balanced.
To note: It is important to keep in mind that the 2021 Act will continue to apply if and until it is in fact repealed. Accordingly, individuals must continue to follow the processes and requirements set out in the 2021 Act whilst also expecting that the Amended 1972 Act is likely to be reinstated in the future.
New point of law: What can be considered as a protected document?
A look at Environment Protection Authority v Sydney Water Corporation  NSWLEC 119.
When (lack of) silence is golden – the true impact of non-disparagement clauses
NSW Supreme Court has squarely put the issue of non-disparagement clauses contained in deeds of settlement into focus.
Regulators to enjoy the benefit of the High Court's assessment of value
By Shaun Temby & Mehar Chawla
High Court decision has set the stage for substantially higher penalties across a range of civil & criminal infractions.
Society of University Lawyers Conference 2023
Maddocks is a proud platinum sponsor of the Society of University Lawyers Conference 2023.