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). |