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17 Sep 2020

Western Australia's new approach to protecting Aboriginal cultural heritage

By Brad Wylynko, Tosin Aro

The expansion in protection, together with the broadening of the concept of Aboriginal cultural heritage, shifts the goal posts in protecting Aboriginal cultural heritage in Western Australia.

With the introduction to State Parliament of the Aboriginal Cultural Heritage Bill 2020 on 10 September 2020, Western Australia is proposing to completely overhaul its 1972 Aboriginal Heritage Act. In the process, it would expand protection for Aboriginal cultural heritage not only from actions that may destroy or damage Aboriginal artefacts or sites, but also from actions that may demonstrate a disrespect for the importance of (or may diminish or otherwise affect the value of) historical or contemporary Aboriginal cultural heritage to Aboriginal people.

The Bill proposes that Aboriginal cultural heritage be defined to include both tangible and intangible elements that are important to Aboriginal people, and extend to groups of areas (called “cultural landscapes”) that are interconnected through such tangible and intangible elements. The elements may be recognised through social, spiritual, historical, scientific or aesthetic perspectives (including contemporary perspectives).

The expansion in protection, together with the broadening of the concept of Aboriginal cultural heritage, shifts the goal posts in protecting Aboriginal cultural heritage in Western Australia.

To harm Aboriginal cultural heritage (places, objects, Aboriginal ancestral remains or cultural landscapes) includes to destroy or damage, or to carry out any act (other than to express an opinion or belief) that demonstrates a disrespect of its importance to Aboriginal people, or diminishes or otherwise affects the value of Aboriginal cultural heritage to Aboriginal people.

Serious harm to Aboriginal cultural heritage may result in a fine of up to $10 million for a body corporate. Serious harm is harm which is irreversible or of a high impact or on a wide scale, or which is harm to Aboriginal cultural heritage that is or is located in a declared protected area (defined as an area or series of areas that contain or comprise Aboriginal cultural heritage of “outstanding significance”). Material harm (harm which is neither trivial nor negligible) may result in a fine for a body corporate of up to $1 million ($100,000 and/or up to five years’ imprisonment for an individual). Since an offence can be one of strict liability, a defence of accident may not be available.

Activities would be regulated under the Bill in accordance with a new risk-based approach to assessing the likelihood of the activity causing harm to Aboriginal cultural heritage. Although there are some expressly exempt activities (such as construction or renovation of a residential building on a lot totalling less than 1,100 square meters, subdivision of not more than five lots, or travelling on an existing road or track, provided the activities are not carried out in a protected area), all other activities that may impact on Aboriginal cultural heritage would be regulated according to a new layered approach to protection.

For example, a person may carry out a minimal impact activity, notwithstanding potential harm to Aboriginal cultural heritage, if the heritage is not in a protected area, the person has undertaken a due diligence assessment, and the person takes all reasonable steps (including by consulting with relevant “knowledge holders” and other Aboriginal parties) to ensure the activity is carried out so as to avoid or minimise the risk of harm being caused to the Aboriginal cultural heritage.

Furthermore, where the activity is a low impact activity (rather than minimal impact), and the activity is not occurring in a protected area, the person may apply to the newly created Aboriginal Cultural Heritage Council for an “ACH permit” to carry out the activity.

Where an activity is a medium to high impact activity, and the heritage is not in a protected area, the person may be able to carry out that activity if they do so in accordance with an ACH management plan that is entered into with relevant Aboriginal parties, and either approved by the ACH Council or authorised by the Minister.

A minimal impact activity means a prescribed activity that involves no or a minimal level of ground disturbance. A low impact activity means a prescribed activity that involves a low level of ground disturbance. Accompanying regulations have yet to be released. We assume that low impact activity will mirror the activities covered by the clearing exemption under the Environmental Protection (Clearing of Native Vegetation) Regulations 2004.

Where agreement cannot be reached with the Aboriginal parties or the Aboriginal cultural heritage is of “State significance”, an ACH management plan may not be approved by the ACH Council, and an application to the Minister for authorisation will be required. Should the Minister refuse to authorise an ACH management plan, the applicant may apply to the State Administrative Tribunal for a review. Additionally, a right of review from the Minister's decision will now be available to a person who is or would be an Aboriginal party in relation to the ACH management plan.

This layered approach to approvals, which replaces the Section 18 approval under the current Aboriginal Heritage Act, provides a more expansive, inclusive – and nuanced – approach to the protection of the range of Aboriginal cultural heritage that exists. It also provides a more engaged process for both project proponents and people affected by projects. Significantly, certain existing agreements (such as are commonly negotiated under the Commonwealth Native Title Act 1993, provided they contain provisions dealing with Aboriginal cultural heritage) will be recognised and operable as an ACH management plan.

The ACH management plan regime is, however, subject to the Minister's power to make stop activity orders where an action involves harm to Aboriginal cultural heritage. Importantly, this Ministerial power will be able to be exercised where an activity was authorised but new information about the identity or significance of Aboriginal cultural heritage has come to light since the approval or authorisation of the ACH management plan.

The Bill is the result of a long period of consultation and brings a new approach to protecting Aboriginal cultural heritage in Western Australia.

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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.