The regulatory framework for the protection of Western Australia's Aboriginal cultural heritage has been in a state of uncertainty – essentially incapable of implementation – since August, when the Government announced the repeal of the recently commenced Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act). We will see some certainty return tomorrow, with the commencement of the substantive provisions of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (Repeal Act) and the repeal of the ACH Act.
The Aboriginal Heritage Act 1972 (WA) (AH Act), as amended by the Repeal Act, continues to make it an offence to harm Aboriginal cultural heritage, just as the ACH Act and the pre-July 2023 AH Act have in the past. A key difference between the AH Act and the ACH Act is the defences that may be available to this offence. The AH Act's section 62 "did not know and could not reasonably be expected to have known" defence is more discretionary and flexible than the more prescriptive due diligence assessment defence provided by the ACH Act. It is also less certain. The level of certainty afforded to landowners by the new framework will depend on the Department's approach to regulation and enforcement, including its interpretation of what a person must do to show that they "could not reasonably be expected to have known". Despite the repeal of the ACH Act, we think it unlikely that we will see a full return to the way the AH Act was implemented in the past.
It is essential for landowners to understand the key reforms, obligations and implications ahead of commencement.
On 15 November 2023, the Repeal Act will:
- repeal the ACH Act, the Aboriginal Cultural Heritage Regulations 2022 and the Aboriginal Cultural Heritage (Cost Recovery) Regulations 2023; and
- reinstate an amended version of the AH Act.
We wrote about the framework implemented by the Repeal Act when the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 was introduced to Parliament. Only minor amendments were made to the introduced Bill before it was passed by Parliament on 17 October 2023. Key principles are set out below.
Section 18 consent
The commencement of the Repeal Act will see the return of the AH Act section 18 consent process – whereby the owner of land can apply for consent to use the land for a purpose that is likely to damage or alter an Aboriginal site – but with some important changes:
- All section 18 consents will be subject to an obligation to notify the Minister of any "new information about an Aboriginal site on the land the subject of the consent". There is no significance threshold for the new information that is required to be notified.
- In the event of new information, the Minister may confirm, amend, revoke or revoke and re-issue the consent, having regard to the "general interest of the community", and may suspend the consent in whole or in part while making that decision.
- Previously, only a landowner could appeal a section 18 consent refusal or conditions imposed on the consent. The Repeal Act amends the AH Act to also allow a native title party to appeal a decision.
- A legal agreement between a landowner and a native title party cannot prevent a native title party from appealing a decision or making a submission (this is the so-called "gag order" provision).
- Section 18 consent decisions will be publicly available on the Department's website.
Otherwise, the section 18 consent process remains essentially as it was. For example:
- it will remain the Aboriginal Cultural Heritage Committee's responsibility to determine what is an "Aboriginal site" (and the definition of this term will remain as it was under the AH Act, rather than the broader definition included in the ACH Act) and to evaluate the importance and significance of the site; and
- consent is granted by the Minister.
Transfer of section 18 consents
One of the key differences between the Repeal Act (as passed) and the Bill that was introduced to Parliament, is the addition of section 18B. This provision was introduced in response to industry calls for a provision allowing transfer of section 18 consents to a new landowner in the event of sale. Under the old AH Act, section 18 consents were personal and non-transferable, whereas authorisations under the ACH Act could be transferred to a new owner. Section 18B is not drafted in the usual style of a transfer provision. There is no transfer application process per se.
Under section 18B, if a recipient of land is receiving land that is the subject of a section 18 consent, the incoming landowner must provide a notice to the Minister in writing within 14 days after the change in ownership occurred. The notice must include:
- a copy of the consent;
- the name and contact detail of each owner of the land; and
- the date on which the change in ownership occurred.
If the Minister is satisfied that the consent does not have its "intended effect" due to the change of ownership, the Minister may amend the consent accordingly. The transfer aspect to this process is that the Minister can, in practice, amend the name of the approval holder in these circumstances.
It is an offence to not give a notice to Minister within 14 days after the change of ownership occurred.
Premier call-in power
In addition to the new power of native parties to apply to the Stated Administrative Tribunal (SAT) for review of a section 18 decision where aggrieved, the Repeal Act introduces a new section 18A giving the Premier a power to determine a review application where the application raises issues of state or regional importance.
The Premier may direct the President of the SAT to refer the application to the Premier for determination or direct the SAT to hear the application and then refer it with recommendations to the Premier. In determining an application, the Premier must take into account written submissions of the owner of the land and each relevant native party.
The Aboriginal Heritage Amendment Regulations 2023 (AH Amendments Regulations), Aboriginal Heritage (Fees) Regulations 2023 (Fee Regulations) and Aboriginal Heritage (Transitional Provisions) Regulations 2023 (Transitional Regulations) will also commence on 15 November 2023.
The AH Amendment Regulations amend the existing Aboriginal Heritage Regulations 1974, prescribing timeframes for various processes and decisions and setting out procedures for the Committee.
The Fee Regulations set out fees for section 18 consent applications, which for a commercial or government proponent will be $250 + $5,096 per Aboriginal site identified in the notice, subject to the regulator's power to waive or reduce the fee.
Although the ACH Act only operated for a short time, a number of matters need to be transitioned back to the AH Act. The Transitional Regulations:
- transition information previously transferred to the ACH Directory back to the AH Act register;
- provide for ACH permits and management plans to be transitioned as section 18 consents, and current applications to be transitioned as notices under section 18(2); and
- create new defences for activities undertaken in the next 12 months that were authorised under the ACH Act because the substantially commenced activity is exempt, tier 1 and authorised by a compliant due diligence assessment, authorised by a permit or management plan or part of an emergency response.
In addition to the Act and Regulations, the Government has prepared:
- AH Act guidelines, regarding the section 18 process and some recommended "due diligence" steps; and
- a consultation policy, including best-practice advice about consulting with Aboriginal people.
These documents have been released to stakeholder groups for consultation purposes but not to the public as at the date of this article. Presumably they will be released before or soon after commencement.
Implementation of the new regulatory framework
Section 62 of the AH Act provides for a "lack of knowledge" defence. A person can rely on this defence where they can prove that they "did not know and could not reasonably be expected to have known" that the place or object damaged was one to which the AH Act applies. Section 62 is not amended by the Repeal Act, and so the words of the defence have not changed from their pre-ACH Act form. However, the circumstances that will satisfy the requirement that a person "could not reasonably be expected to have known" are open to interpretation, and influenced by changes in expectations over time. As a matter of practice, the interpretation and application of this defence will depend on the extent of due diligence that a person is reasonably expected to undertake before carrying out activities that may harm heritage.
Although criticised for its detailed and prescriptive nature, a benefit of the due diligence assessment process in the ACH Act was that it provided clarity as to expectations and certainty of protection if the specified steps were followed. By contrast, the section 62 defence provides the potential for greater flexibility in its application, depending on how it is interpreted and applied by the regulator.
Whilst the repeal of the ACH Act sees a return to the regulatory landscape of the AH Act, in our view we will not see a full return to the way that Act was applied in the past. The modern understanding of what is required to protect Aboriginal cultural heritage is not what it was when the AH Act first commenced in 1972, or even what it was pre-2020 Juukan Gorge. Excluding a possible allowance for some short-term leniency during a transition period, we expect that some of the more modern expectations of heritage protection will filter into the due diligence expectations for the section 62 defence, including how a person is expected to inform themselves of potential heritage on their land and what constitutes appropriate consultation. It may be that due diligence expectations going forward do not, in practice, look all that different to the kinds of requirements included in the now withdrawn ACH Act Management Code, but without the provision for exempt and tier 1 activities, or certainty of protection if specified steps are followed.
We will have to wait to see the final content of the guidance materials and the Department's approach to regulation and enforcement of the amended AH Act once it has commenced. In the meantime, for landowners wanting to ensure ongoing compliance, following a due diligence process along the lines of that set out in the ACH Management Code may represent a lower risk approach.