Western Australia introduces new Aboriginal Cultural Heritage Act 2021

The Aboriginal Cultural Heritage Act 2021 (Act) came into effect on 1 July 2023.

The Act replaced the Aboriginal Heritage Act 1972 (1972 Act) and is intended to protect Aboriginal cultural heritage (ACH). ACH encompasses tangible and intangible elements that are important to Aboriginal people in Western Australia, including Aboriginal places, Aboriginal objects, cultural landscapes and Aboriginal ancestral remains. The Act establishes processes that outline the responsibilities for land users (referred to in the Act as proponents) as well as the roles for the ACH Council (ACH Council) and Aboriginal people for the management of the activities.

A proponent should consider the requirements of the Act as early as possible for a proposed development.

Approval process

As set out in the flow chart below:

• no approval is required if there is no ACH present, the activity is exempt or there will not be any impact to ACH; and
• approval will be required where there is ACH present and there is risk of harm to ACH.

A proponent is responsible to undertake a Due Diligence Assessment (DDA) to assess whether there is ACH present in the area and whether there is a risk of harm to ACH caused by the proposed activity.

Whilst the need to seek approval for activities that may harm ACH has not changed from the 1972 Act, the approach has changed. The Act has removed the old section 18 approval process under the 1972 Act and prioritises consultation with Aboriginal people about whether there is any ACH on the land and if any land use activities may impact ACH.

Activity Tiers

The Act introduces a tiered system to determine the level of DDA that is required to be undertaken by the land user and, ultimately, whether a permit or management plan is required. The four primary categories are as follows:

• Exempt Activity: an activity that is exempt and can proceed as planned. No approval is required for exempt activities. Some of the key exemptions include residential properties under 1100 sqm and undertaking of “like-for-like” activities (such as farmers working on established paddocks in the way they had been previously). Department of Planning, Lands and Heritage (DPLH) have published a factsheet outlining the exempt activities.
• Tier 1 Activity: an activity where there is no or minimal level ground disturbance. If a proposed Tier 1 activity may harm ACH, proponents may proceed but must take all reasonable steps possible to avoid or minimise the risk of the harm being caused to ACH.
• Tier 2 Activity: an activity where there is low-level ground disturbance. An Aboriginal Cultural Heritage Permit (ACH Permit) or approved or authorised Aboriginal Cultural Heritage Management Plan (ACH Management Plan) will be required to undertake a Tier 2 Activity.
• Tier 3 Activity: an activity where there is moderate to high level ground disturbance. An approved or authorised ACH Management Plan will be required to undertake a Tier 3 Activity.

Timeframes

There are prescribed timeframes that apply to the ACH Council providing approvals and the timeframes are set out in the ACH Timeframes Guideline on the DPLH website.

For a proposed Tier 2 Activity and application for an ACH Permit:

• 28 days is the prescribed period for persons who are to be notified about the activity to submit to the proponent their views about the risk of harm; and
• 14 days after the end of the period for making submissions, the ACH Council must make a decision.

For a proposed Tier 3 Activity and application for an ACH Management Plan:

• 140 days for the proponent and Aboriginal party to reach an agreement commencing 5 days after the proponent gives notice about the ACH Management Plan;
• 28 days for ACH Council to approve agreed plan after parties advise ACH Council of their agreement; and
• 90 days for ACH Council to recommend authorised plan to Minister where parties cannot agree.

Undertaking a Due Diligence Assessment (DDA)

The Aboriginal Cultural Heritage Management Code (Code) available on the Department of Planning, Lands and Heritage website details the activity tiers and should be reviewed by proponents to understand more fully the steps that must be undertaken to satisfy the DDA requirements of the Act.

A DDA is required to be undertaken to determine the presence of ACH and assess the risk of harm to ACH which then allows proponents to determine how to proceed with an activity. A DDA is not required for activities that are exempted under the Act. The process of undertaking a DDA is set out in the Code and assists in determining whether:

• the activity is in a Protected Area;
• there is any ACH located within an activity area;
• the activity should be carried out in a particular way, or using an alternative location or method so as to avoid harming ACH (which would then not require any approval);
• approval is required for the proposed activity, which may include the need for an ACH Permit or an ACH Management Plan; and
• engagement with Aboriginal parties is required.

The Code clarifies the extent of the DDA that proponents must complete and highlights the differing DDA approaches depending on the tier the activity falls into and the geographical area in which the activity will be undertaken.

It is recommended proponents use the Code as a guiding document when undertaking a DDA and refer to:

• Appendix 1 for more details about the activity tiers; and
• Appendix 2 for guidance in relation to the process for engaging with Aboriginal parties to ensure the required persons are notified about a proposed activity.

What happens to existing section 18 consents?

Section 18 consents under the 1972 Act continue and no new approval is required. The Section 18 consent will expire 10 years after the transition day. The transition day was 1 July 2023 so section 18 approvals will expire 30 June 2033. There are exceptions to this expiry date in circumstances where:

the consent is no longer in force on the date that is 10 years after the transition day; or

an application in relation to the consent has been made to the Minister no later than 12 months before the expiry day and the Minister has made a decision that the consent the subject of the application will not expire on the expiry day and the Minister gives the owner of the land written notice of that decision before the expiry day.

Next Steps

The Code references an ACH Directory, which provides a searchable directory to assist in determining whether the area in which an activity is proposed to be undertaken has been declared as a Protected Area. The ACH Directory is available on the DPLH website and provides locations and information about ACH in Western Australia.

DPLH have also created the Aboriginal Cultural Heritage Portal, referred to as ACHknowledge, where proponents can:

• request advice;
• lodge applications for ACH related processes;
• view the progress of applications; and
• update proponents contact details.

As is apparent from the recent media, there are still lots of aspects of the ACH Act which are not yet developed, or clearly understood. The published guidelines, related documents and the availability of support from DPLH are designed to guide proponents and support Aboriginal people in navigating Western Australia’s new ACH framework.

Jackson McDonald can assist you with understanding your obligations under the ACH Act.

Please contact us if you would like further advice.