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Aboriginal Heritage Act 1972 (WA)

Category: Legislation
Binomial Name: State of Western Australia
Sub Category:Legislation
Place:
State/Country:Western Australia, Australia
Subject Matter:Cultural Heritage | Environmental Heritage
URL: http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/wa/consol_act/aha1972164/
Summary Information:

The Aboriginal Heritage Act (AHA Act) applies in relation to the protection of places and objects which may be of importance and significance to people of Aboriginal descent in Western Australia. In particular, it applies to places and objects (and storage areas for objects) that may have sacred, ceremonial and ritual significance.


The Act provides for the registration of all places in Western Australia of traditional or current sacred, ritual or ceremonial significance to persons of Aboriginal descent.

It also provides for the reporting of such sites and objects to the Registrar of Aboriginal Sites, or the Police. An Aboriginal site may be declared a Protected Area.

It is an offence for anyone to excavate, destroy, damage, conceal, alter, or deal in any way with an Aboriginal site or object, and to take possession of and/or deal with any object under or on an Aboriginal site.

Section 18

While section 17 of the AH Act makes it an offence to damage or alter any site of importance or significance to persons of Aboriginal descent (as defined by section 5) without authorisation, section 18 outlines an approval process by which the Minister for Aboriginal Affairs could may give consent to a land owner to use land for a purpose which would otherwise likely breach section 17.

In deciding whether to grant consent, the Minister must consider a recommendation by the Aboriginal Cultural Material Committee (the ACMC) and also the 'general interest of the community.' However, the Minister may act outside the recommendation made by the ACMC, and Traditional Owners have no procedural rights in relation to any aspect of decision making. As a result, a section 18 permit can become permanent permission for a destructive activity even when new information about a site's significant heritage value comes to light. (Joint Standing Committee on Northern Australia, pp 71, 73, 75)

Detailed Information:

Background and Context

The AH Act came into operation in 1972, at a time where growing official and public awareness about Aboriginal cultural sites coincided with the Western Australian mining boom of the 1960s and 1970s, which led to large-scale developments in inland areas of WA which had previously been largely untouched by non-Indigenous people. These developments had unprecedented impact on local Aboriginal and Torres Strait Islander peoples. With increasing disputes about development of land on which important Aboriginal sites were located, it became clear that formal mechanisms were needed to protect Aboriginal heritage. (Joint Standing Committee on Northern Australia, [4.6])

Criticisms of the AH Act

While the Act was reviewed and amended several times over the fifty year period for which it was in force, it has been broadly accepted as outdated. Criticism of the Act generally concerns its ineffectiveness in the face of pressures on Aboriginal heritage from the scale of Western Australian economic development, and that of successive governments having either 'watered down' the Act or applied it in such a way that it has not protected Aboriginal heritage [4.29 - 4.37].

In particular, section 18 was found to have significant shortcomings. Once a permit had been granted, it 'entrenched a right to destroy' cultural heritage, where Traditional owners could not appeal the Minister's decision, even in the face of new evidence, despite the fact that land owners and miners retained that right [4.44].

The destruction of the Juukan Gorge, and other examples outlined in Ch. 3 of the 'A Way Forward' report, demonstrate how the AH Act, (and s 18 in particular) have, in many cases directly contributed to damage and destruction of Aboriginal cultural heritage (Foreword).

Legislative Reform

In response to the growing desires for major reforms of legislative protections for Aboriginal heritage in Western Australia, the WA government commenced a review of the AH Act in 2018. To do so, it engaged in a three-stage consultation process that sought to identify issues and gaps in the AH Act. In March 2019 it released a discussion paper which set out proposals for new legislation, and in October 2020, a draft exposure bill was released for further submissions. (See Chapter 4 of the "A Way Forward Report" linked below.)

The new, Aboriginal Cultural Heritage Act 2021 (WA) was passed in October 2021 with the intention of, among other things, better recognising, protecting, conserving and Aboriginal cultural heritage, (s 8).


Related Entries

Agreement
  • Heritage Protection Agreement
  • Clarrie Smith v State of Western Australia [2000] FCA 1249 (29 August 2000)
  • James on behalf of the Martu People v Western Australia [2002] FCA 1208 (27 September 2002)
  • Kintyre Aboriginal Survey and Compensation Agreement
  • Murchison Radio-astronomy Observatory Agreement
  • Gordon on behalf of the Kariyarra Native Title Claim Group v State of Western Australia (No 2) [2018] FCA 1990
  • O'Connor on behalf of the Palyku People v State of Western Australia (No 2) [2021] FCA 195
  • Organisation
  • State of Western Australia
  • Legislation
  • Aboriginal Cultural Heritage Act 2021 (WA) - Previous
  • Policy/Strategy
  • Department of Defence Heritage Management Strategy

  • References

    Report
    Joint Standing Committee on Northern Austarlia (October 2021) A Way Forward
    Resource
    State of Western Australia (1972) Aboriginal Heritage Act 1972
    Australian Legal Information Institute (1972) Aboriginal Heritage Act 1972 (WA)

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