The ripple effect of Juukan Gorge is being felt:
the new Western Australian Aboriginal Cultural Heritage Act 2021
In light of the Juukan Gorge disaster in Western Australia, a number of states across Australia are reviewing their heritage legislation.
The Aboriginal Cultural Heritage Act (the Act) will supersede the Aboriginal Heritage Act 1972. This follows three years of discussions with Aboriginal people, industry experts and the larger Western Australian community. The Act will seek to provide better recognition and conservation by placing Traditional Owners at the centre of the decision-making process about heritage management.
The Act will replace the Section 18 process with a tiered approach, focusing on informed consent and agreement-making with Indigenous groups.
One of the key changes to be aware of is a new broader definition of Aboriginal Cultural Heritage (ACH) under section 12 of the Act, which now includes cultural landscapes and 'intangible elements' that are important to Aboriginal people. Practically, heritage surveys completed prior to 21 December 2021 will need to be reviewed to ensure that they consider 'intangible elements'.
In addition, a due diligence assessment (DDA) is now mandatory to determine whether Aboriginal cultural heritage is present in the area and whether there is any risk of damage to the area if the proposed activity were to be carried out. Proponents should note that undertaking a detailed DDA must be in compliance with Act’s Statutory Guidelines (Code) and undertaking a DDA in accordance with the Code may be used as a defence under the Act (s 98).
Of importance is that in an effort to increase the protection of Aboriginal heritage, prior Section 18 and Section 16 approvals and approved Cultural Heritage Management Plans can be cancelled or suspended if new information comes to light.
On 19 May 2023 the Code was gazetted. The Act will come into full effect from 1 July 2023. However, still to be released are guidelines in relation to surveys and investigations for ACH. So watch this space.
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