16 Jun 2014

Changes to WA's Aboriginal Heritage laws open for comment

The WA State Government is seeking comment on a draft Aboriginal Heritage Amendment Bill 2014.

According to the Minister of Aboriginal Affairs, the draft Bill is the first meaningful change to the way WA manages the protection of Aboriginal heritage through the Aboriginal Heritage Act 1972 in 33 years.

The proposed amendments include the following key changes.

A more streamlined process of assessment of places and objects is proposed by enabling the CEO of the Department of Aboriginal Affairs (DAA) to carry out assessments relating to Aboriginal Sites for the purposes of section 5 and 6 of the Act, protected areas under section 19 of the Act, and Aboriginal cultural material under section 40 of the Act.

The section 18 approvals process will be amended to allow any person to make an application, rather than just the owner of the land. The CEO will also be able to fast-track approvals by:

  • declaring that there does not appear to be an Aboriginal site on the land, which will act as a defence to a charge under section 17 of the Act; and
  • granting an expedited permit with or without conditions where the site will not be adversely affected by the activity.

A register of declarations and permits will be established to record all current and historical approvals.

Measures to strengthen compliance and enforcement will be introduced, including substantially higher penalties, extension of time to prosecute offences, power to issue infringement notices and power for the courts to issue remediation orders.

New regulations are proposed to:

  • assist the CEO to identify Aboriginal places and objects by the creation of additional criteria for the evaluation of the importance and significance of Aboriginal places and objects;
  • enable the DAA to recover costs for services, such as processing approval applications; and
  • improve the quality of information on the Register of Aboriginal Sites and Objects (currently Register of Places and Objects) and the Register of Declarations and Permits.

Next steps

Stakeholder consultation and public comment on the draft Bill close on 6 August 2014.

As Aboriginal Heritage laws affect so many major projects across the State, especially resources projects, this is an important opportunity to shape the future direction of this area.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.