Aboriginal Cultural Heritage Bill introduced to WA Parliament – A new regulatory framework is coming

After more than three years of consultation, and in the wake of the Juukan Gorge destruction, the long anticipated Aboriginal Cultural Heritage Bill 2021 (WA) (New Bill) was introduced to the WA Legislative Assembly this week. It is expected that it will be passed before the end of the year.

The existing regulatory framework for the protection of Aboriginal cultural heritage in Western Australia, under the Aboriginal Heritage Act 1972 (WA) (AH Act), is almost universally agreed to be inadequate and out of step with modern expectations of Aboriginal cultural heritage management. The New Bill represents a significant change from that existing regulatory regime. Some of the most significant changes are discussed in this article.

For those familiar with the version of the Bill released for consultation in September 2020, the Aboriginal Cultural Heritage Bill 2020 (WA) (Consultation Bill), we will also discuss some of the key changes made in the New Bill as compared to that Consultation Bill. These changes are less fundamental but may still be significant for the practical implementation of the new regulatory regime.

Key changes from the existing regulation of Aboriginal cultural heritage in WA

The New Bill signifies a significant change in approach to the management of Aboriginal cultural heritage. Under the AH Act there is no statutory requirement for proponents to consult with Aboriginal people. If the New Bill is passed, it will place a much greater emphasis on traditional owners and proponents agreeing on the management of Aboriginal cultural heritage.

Somewhat controversially, the Minister retains the ultimate decision-making power under the New Bill if parties cannot agree. However, in practice it is expected, and intended, that matters will be agreed between proponents and traditional owners in most cases. Where this occurs, the Minister will not play a direct role and the new statutory body created to oversee the process – the Aboriginal Cultural Heritage Council (ACH Council) – will play a limited role only, signing off on agreements where the proponent has complied with all its obligations to interested Aboriginal parties (such as consultation and ensuring informed consent).

Some of the key changes made by the New Bill are as follows:

1. Widening of the definition of Aboriginal cultural heritage: The definition is widened to account for both tangible and intangible heritage, such as cultural landscapes.¹
2. Identification of Aboriginal cultural heritage: Under the existing regime, the Aboriginal Cultural Material Committee evaluates what is and what is not an Aboriginal site under the AH Act. Under the New Bill, the Aboriginal knowledge holders themselves will be responsible for identifying Aboriginal cultural heritage.
3. New statutory bodies: The ACMC will no longer exist. The ACH Council will be established to give strategic advice, designate the Local Aboriginal Cultural Heritage Services (LACHS) and oversee the heritage management agreement process.²The ACH Council will grant Aboriginal Cultural Heritage Permits (ACH Permit), approve agreed Aboriginal Cultural Heritage Management Plans (ACH Plans) and make recommendations to the Minister about authorising ACH Plans. Where a LACHS has been designated for a particular area, it will be the point of contact for engagement and negotiation between proponents and traditional owners and will facilitate the agreement of ACH Plans.
4. No more section 18 consents: Under the existing regime, proponents can apply to the Minister for approval to damage an Aboriginal site. This process will not exist under the new regime.
5. New tiered system for management of cultural heritage: While the existing section 18 consent process provides “blanket consents” for activities, the new approvals system establishes different tiers of management for activities classified as exempt, Tier 1, Tier 2 or Tier 3. The Regulations (which are not yet available) will provide the detail of exactly what activities will fall within each tier. Activities that have been mentioned as likely to be exempt include walking on an existing track or undertaking recreation activities on a public waterway. Each tier has different requirements:
   • For Tier 1 activities (prescribed activities with no or minimal ground disturbance, likely including activities such as maintaining existing infrastructure, metal detecting and weed control), a due diligence assessment will be required and the proponent must take all reasonable steps to avoid harm;
   • For Tier 2 activities (prescribed activities with low level ground disturbance, likely including activities like revegetation and digging with hand tools), a proponent will need to undertake a due diligence assessment and carry out the activities in accordance with an ACH Permit or an approved or authorised ACH Plan;⁴andFor Tier 3 activities (prescribed activities with medium to high levels of ground disturbance, such as digging with machines), the proponent must conduct a due diligence assessment and carry out the activities in accordance with an approved or authorised ACH Plan.⁵

6. Due diligence assessments: A due diligence assessment must be undertaken for all activities that may harm Aboriginal cultural heritage, other than exempt activities.⁶The detail required for the assessment will be set out in a new Aboriginal Cultural Heritage Management Code. Proponents will need to consider whether the proposed activities are in a protected area, which tier the activities fall in, whether there is Aboriginal cultural heritage in the location, whether there is a risk of harm to it and (for Tier 2 and 3 activities) the relevant people for notification or consultation.
7. ACH Permits: Where the activity is a Tier 2 activity, a proponent may wish to obtain an ACH Permit rather than agreeing an ACH Plan.⁷Proponents must apply to the ACH Council who must grant or refuse to grant an ACH Permit, depending on certain matters outlined in the New Bill.⁸
8. ACH Management Plans: ACH Plans are intended to manage activities which may harm Aboriginal cultural heritage. An ACH Plan for a Tier 2 or 3 activity may be approved by the ACH Council where there is agreement between the parties or if there is no agreement, must be authorised by the Minister. Proponents must consult and use “best endeavours” to reach an agreement with each interested Aboriginal party about the terms of an ACH Plan.⁹The scope of this obligation is, at this stage unclear but may be further clarified in the consultation guidelines (which are yet to be published). An ACH Plan will only be approved by the ACH Council if the Council is satisfied that the interested Aboriginal parties have given “informed consent” to the plan.¹⁰
9. The Minister retains ultimate decision-making power in limited circumstances: If the parties cannot reach agreement on an ACH Plan after a prescribed period, the ACH Council may act as a mediator and assist the parties to reach agreement. If the parties still cannot agree, the ACH Council makes a recommendation to the Minister but the Minister has the ultimate discretion as to whether a plan is authorised and the activity can go ahead. Decisions of the ACH Council on ACH Permits and ACH Plans are also appealable to the Minister.¹¹
10. Continuous disclosure: Under the existing regulatory regime, once a section 18 consent is granted, it continues to apply regardless whether the information about Aboriginal cultural heritage changes (e.g. a new site is identified). This will change under the New Bill. Both the AH Act and the New Bill contain a duty to report Aboriginal cultural heritage but failure to report is now an offence under the New Bill.¹²It will be a standard condition on all ACH Permits and ACH Plans that new information about the existence or significance of Aboriginal cultural heritage must be reported. Similar provision is made in relation to historic and transitional section 18 consents.¹³The meaning of “new information about Aboriginal cultural heritage” is defined in section 178.
11. Enforcement provisions: The Bill introduces significantly increased penalties, from up to $100,000 for a body corporate under the AH Act to a maximum of $10million under the New Bill. There is also a suite of new enforcement measures including:
    • Powers for the Minister to issue “stop activity orders”, “prohibition orders” and “remediation orders”;¹⁴ and
    • New offences for carrying out harm including material or serious harm, and the introduction of criminal offences and liability for employers in certain circumstances where employees have contravened provisions of the Act.¹⁵

Changes following release of the Consultation Bill

Overall, the New Bill is similar to the Consultation Bill released last year. However we have outlined some of the key amendments coming out of the most recent phase of consultation below:

1. ACH Council and LACHS: Changes have been made to the make-up, appointment and performance of the ACH Council and LACHS in the New Bill:
   • requiring the membership of the ACH Council to be made up of two Aboriginal co-chairpersons (a man and a woman)¹⁶and as far as practicable the majority of members to be Aboriginal people;¹ and
   • to ensure that a designated LACHS has sufficient support and uses its best efforts to perform its functions, including providing services in a timely manner, and to remove the requirement that LACHS act impartially.

2. Tiered assessment process: Some modifications have been made to the provisions regarding ACH Permits and the authorisation of ACH Plans, including the following:
   • the ACH Council “must” grant an ACH Permit where the requirements are met (instead of “may”) and cannot grant one where the requirements are not met;
   • the time period for an ACH Permit has been extended from 2 years to 4 years;
   • options are provided to extend the period for reaching agreement on an ACH Plan;¹
   • the meaning of “informed consent” has been amended to include the requirement that proponents provide details (if applicable) of other “feasible” methods available to carry out the proposed activity;
   • an ACH Plan relating to a Protected Area cannot be approved or authorised;¹⁹and
   • there are additional powers for the Minister to cancel or suspend an ACH Plan.²⁰

3. Decision timing: The New Bill amends the Environmental Protection Act 1986 (WA) to ensure that a decision in relation to cultural heritage under the New Bill can be made even where a proposal has been referred under section 38 of that Act, despite the usual operation of section 41 of that Act. Prescribed time limits have also been imposed on some of the ACH Council and Minister’s decisions, to ensure they are made in a timely way.
4. Continuous disclosure: The provisions relating to new information mentioned above have been added in the New Bill, since the Consultation Draft.
5. Enforcement Measures and Review: The New Bill has amended the enforcement and review provisions further to:
   • introduce a regime whereby penalties for harm to Aboriginal cultural heritage offences can be paid to a Special Purpose Account rather than to Consolidated Revenue, to facilitate the payment of compensation to Aboriginal parties;²¹
   • narrow the definition of what constitutes harm to Aboriginal cultural heritage (reference to acts that demonstrate disrespect has been removed);²²
   • introduce liability for principals where an agent contravenes the Bill;²³and
   • remove the State Administrative Tribunal’s jurisdiction to review the Minister’s decision to authorise or refuse to authorise an ACH Plan or an amended ACH Plan.²⁴

6. ACH Protection Agreements: The New Bill introduces the concept of an ACH Protection Agreement (ACH PA). These will be endorsed by the ACH Council and are agreements that deal with activities that an ACH Permit and ACH Management Plan are not required for.²⁵ACH PAs may deal with, among other things, matters regarding the protection, conservation, and recognition of Aboriginal cultural heritage in an area or areas.²⁶
7. Transitional Provisions: Some of the transitional provisions have been amended. Existing “historical” section 18 consents will be grandfathered for 10 years (and possibly longer with approval). “Transitional” section 18 consents granted after the New Bill becomes law but before the AH Act is fully repealed, will continue to be valid for 5 years (with a Ministerial discretion to extend for a further 5 years).²⁷

Whilst the Bill has only just been introduced to Parliament, we suspect that following the lengthy consultation process and given the strength of the Government in Parliament, the majority of the Bill will be passed unchanged before the end of the year.

There is still significant uncertainty regarding timing for commencement of the new law. The Government has indicated that a co-design process will be utilised for the drafting of underlying guidelines, so further consultation with Aboriginal groups, industry and Government is likely. This could take some time.

Project proponents and others undertaking activities in locations that may have Aboriginal cultural heritage significant will need to be aware of the extent and scope of the changes to WA’s Aboriginal heritage laws and ensure that they understand their obligations. Please contact the authors if you need any advice in relation to the proposed changes and implications for your company.

This article was written by Lucy Shea, Partner and Lara Scott, Solicitor.

¹Aboriginal Cultural Heritage Bill 2021 (WA) s 12.
²Ibid s 36.
³Ibid s 110.
⁴Ibid s 111.
⁵Ibid s 112.
⁶Ibid s 102, 103.
⁷Ibid s 113.
⁸Ibid s 121(b).
⁹Ibid s 142(2)(a).
¹⁰Ibid s 146. Note: Informed consent is consent given voluntarily, without coercion, intimidation or manipulation where the proponent has been given full and proper disclosure of information.
¹¹Ibid s 131 (ACH Permit) and s 155 (ACHMP).
¹²Ibid s 56, 57 and 64.; AH Act s 15.
¹³Ibid ss 128(1), (3) and 167(1), (3).
¹⁴Ibid Part 7.
¹⁵Ibid s 268.
¹⁶Ibid s 21(1)(a).
¹⁷Ibid s 21(3)(b).
¹⁸Ibid s 143 (2)(b).
¹⁹Ibis s 151(b).
²⁰Ibid s 154(1).
²¹Ibid ss 99 and 352.
²²Ibid s 90.
²³Ibid s 267(1). Note: this is subject to the defence that the principal took all reasonable steps to prevent the commission of the offence by the agent.
²⁴Ibid s 277 (1).
²⁵Ibid s 206.
²⁶Ibid s 206(3).
²⁷Ibid s 325. Note: this does not apply to “transitional s 18 consents” which are distinguished in the New Bill – see section 313.