Aboriginal Cultural Heritage Act 2021 (WA)

The Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) was introduced in response to the ongoing and increasing demand for major reforms to legislative protections for Aboriginal Heritage in Western Australia. It repeals the Aboriginal Heritage Act 1972 (WA) and the Aboriginal Heritage (Marandoo) Act 1992 (WA), and for related purposes.

The process that led to the introduction of the ACH Act

In 2018, the WA government commenced a three-stage consultation process seeking to identify issues and gaps in the Aboriginal Heritage Act 1972 (WA). 

In March 2019, a discussion paper was released setting out proposals for new legislation, and in October 2020, a draft exposure bill was released in order to seek further submissions (Joint Standing Committee on Northern Australia, Chapter 4).

While this process was underway, on 24 May 2020, Rio Tinto destroyed rock shelters estimated to be more than 46,000 years old at Juukan Gorge in the Pilbara region of Western Australia to expand one of its iron ore mines. The destruction of this significant Aboriginal site was permitted under the Aboriginal Heritage Act 1972 (WA).

The grief of the Puutu Kunti Kurrama and Pinikura Peoples, and the outrage of the wider community that this event caused further underscored the need for legislative reform, and in response, the Commonwealth Senate referred an inquiry into the destruction of the rock shelters to the Joint Standing Committee on Northern Australia (Joint Standing Committee on Northern Australia, Foreword).

The final report of this inquiry, entitled "A Way Forward", recognised not only Rio Tinto's failures, but also the inadequate protection afforded by the Aboriginal Heritage Act 1972 (WA) and the broader deficiencies across Australia's Aboriginal and Torres Strait Islander cultural heritage legislative frameworks in all states and territories and the Commonwealth. 

Objects

The purpose of the ACH Act is to:

• recognise the fundamental importance and value of Aboriginal cultural heritage and the central role of such heritage to Aboriginal communities past, present, and future;
• recognise the living, historical and traditional nature of Aboriginal cultural heritage;
• recognise that Aboriginal people have custodianship over their cultural heritage;
• recognise, protect, conserve and preserve Aboriginal cultural heritage;
• manage activities that may harm Aboriginal cultural heritage in a manner that provides both clarity, confidence and certainty; and balanced and beneficial outcomes for Aboriginal people and the Western Australian community; and
• promote an appreciation of Aboriginal cultural heritage. 

(the ACH Act, s 8).

Key Provisions of the ACH Act

After an initial transitional period of 12 months during which time the Aboriginal Heritage Act 1972 (WA) remains in force, the ACH Act removes the controversial section 18 approval process contained within the Aboriginal Heritage Act 1972 (WA) that allowed for the destruction of the Juukan Gorge rock shelters.

The problem with Section 18 of the Aboriginal Heritage Act 1972 (WA)

Section 17 of the Aboriginal Heritage Act 1972 (WA) created a general prohibition against damage or alteration of any site of importance or significance to persons of Aboriginal descent. However, section 18 outlines an approval process by which the Minister for Aboriginal Affairs may authorise a landowner to use the relevant land for a purpose that would otherwise breach section 17.

In deciding whether to authorise such an activity under section 18, the Minister must consider two things: a recommendation of the Aboriginal Cultural Material Committee (ACMC) (a body established under section 28 of the  Aboriginal Heritage Act 1972 (WA)), and the 'general interest of the community.' 

Nonetheless, the Minister may act outside of the ACMC's recommendation, and furthermore, the Traditional Owners have no right to appeal the Minister's decision.

As a result, a section 18 permit can amount to permanent permission for 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).

Replacing section 18

During the 12-month transitional period, a landowner's access to a section 18 permit continues, but any permit granted by the Minister during this period is limited to a maximum of 5 years with the landowner being required to report any new information concerning the existence and characteristics of Aboriginal cultural heritage (s 340 of the ACH Act).

After this period, the provisions in Part 6 of the ACH Act govern the management of activities that may harm Aboriginal Cultural Heritage. These provisions outline requirements for due diligence around any planned activities (Division 2), notifications (Division 3), and permit processes (Divisions 4, 5). In particular, s 155 outlines the process by which a party wanting to engage in potentially harmful activity may apply for an Aboriginal Cultural Permit to carry out that activity.

Review By State Administrative Tribunal 

People who are parties to an Aboriginal Cultural Heritage Management Plan (including interested Aboriginal parties per s 137) may seek a review, by the WA Administrative Tribunal, of the Minister's approval of the plan under s 154(1).

However, only landowners may seek review of decisions to stop, remediate, or prohibit activities, not Traditional Owner groups (s 277).

Offences under the ACH Act.

The ACH Act increases the penalties for serious harm to Aboriginal cultural heritage from 9 months imprisonment and a $20,000 fine for individuals, and a $50,000 fine for bodies corporate (s 57 Aboriginal Heritage Act 1972 (WA)), to 5 years imprisonment or a $1 million fine for individuals, and a $10 million fine for bodies corporate (s 92 ACH Act).  

Related Entries

References