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The framework: Guidelines for the new Western Australian Aboriginal Cultural Heritage Act 2021 have officially been released

By Susanne Rakoczy & Kenya Walker

• 19 July 2023 • 2 min read
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As of 1 July 2023, the Aboriginal Cultural Heritage Act 2021 Statutory Guidelines (Guidelines) have been released under the new Western Australian Aboriginal Cultural Heritage Act 2021 (the Act). These Guidelines are part of the three phase co-design process to strengthen the WA Aboriginal cultural heritage framework.

Read our previous article on the introduction of the Western Australian Aboriginal Cultural Heritage Act:

Mandatory due diligence assessment

The Guidelines reflect section 10 of the Act, in which Aboriginal cultural heritage is to be preserved and prioritised when managing activities on Country. In line with this, the Guidelines set out how the mandatory due diligence assessment (DDA) is to be used to determine whether Aboriginal cultural heritage is present in the area and whether there is any risk of damage to Aboriginal cultural heritage if the proposed activity were to be carried out.

There are exemptions to the DDA obligation that may apply and it should be noted that undertaking a detailed DDA must be in compliance with Guidelines. Further, a DDA is not an approval of harm, but undertaking a DDA in accordance with the Guidelines may be used as a defence under the Act (s 98). The important point here is that the Guidelines and the Act requires consultation with the relevant native title party, local Aboriginal knowledge holders or local Aboriginal community.

Previous surveys

The Department of Planning, Lands and Heritage have also released a number of other guidelines, fact sheets and flowcharts, including a Aboriginal Cultural Heritage Survey Report Guidelines (Survey Guidelines). Under these Survey Guidelines, heritage surveys that have been undertaken under the previous Act, may only be relied on for the purposes of a DDA if they meet the standards set out in the Survey Guidelines, noting the latest a previous survey can be dated, even if it meets the requirements of the Survey Guidelines, is 1 January 2013.

Transitionary provisions - approvals under the former act

The Act replaces the former ‘Section 18’ process under the former legislation with a tiered approach, where activities that involve moderate to high level ground disturbance is considered a Tier 3 which will require an Aboriginal Cultural Heritage Management Plan to be negotiated with the relevant Aboriginal parties. This includes a new mine site, deep excavation or land clearing, subdivisions or major construction projects. There are transitional provisions under Part 14, Division 2, Sub-division 3 of the Act, that allow works substantially undertaken to continue under previously granted Section 18 and Section 16 approvals. However, these approvals can be cancelled or suspended if new information comes to light.

Our expertise

At Maddocks, we have specialist experts in this area, with team members having previous archeological and anthropological experience. If you have any questions, contact our Public Law specialists.

By Susanne Rakoczy & Kenya Walker

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