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The Aboriginal Cultural Heritage Act 2021, which comes into effect on 1 July 2023, “recognises, protects, conserves, and preserves Aboriginal cultural heritage (ACH), and recognises the fundamental importance of ACH to Aboriginal people and its role in Aboriginal communities past, present and future”. 

New implementation group 

The State Government has announced a new implementation group – including traditional owners, industry and government representatives – to monitor the enactment of the Act’s initial stages and help industry address any issues that may arise. 

The group's work will also feed into the 12-month review the State Government has committed to conduct as part of the implementation process. 

While land users and industry sectors adjust to the new system, the Government says it will adopt a “responsible, reasonable and education-first approach” for the first 12 months – similar to the approach taken for implementation of WA's new work health and safety laws. 

Information and awareness activities, including public workshops and education sessions, will continue across WA after July 1. 

"We have consulted extensively with Aboriginal people and industry to find a balance that allows Aboriginal people to speak for their country and ensures that many activities continue with minimal disruption or additional burden,” says Premier the Hon Roger Cook. 

What are the key details? 

The new legislation replaces the Aboriginal Heritage Act of 1972 and the section 18 approval process to manage ACH in WA. 

The State Government has released guidelines to support the new Aboriginal cultural heritage laws which include details about consultation requirements, fee structures and categories of land use activities. 

The Act makes many changes, but here are the major changes you need to know: 

1. The values held by Aboriginal people in relation to ACH will be prioritised when managing activities on land that may harm ACH. 
2. A new definition of ACH (see below).
3. Where an activity that may harm ACH is proposed to be carried out, the person who is undertaking the activity (proponent) must perform a due diligence assessment (DDA) - other than for exempt activities – to:
   a. assess the risk of harm to ACH; and
   b. enable a proponent to determine how to proceed in relation to the proposed activity.
4. No approval is required where:
   a. there won’t be any impact; or
   b. on land less than 1,100 square metres in area.
5. There will be a tiered system that provides for activities to be categorised according to the potential level of harm and a corresponding authorisation process for each of the tiers (see below). This will help to determine the level of due diligence to be undertaken by a land user, and whether a permit or management plan is required.
6. Aboriginal organisations can choose to be designated as a Local Aboriginal Cultural Heritage Service which will give them a greater say in these processes as well as provide a one-stop shop for proponents and help facilitate those processes. 

The new definition of ACH 

Aboriginal cultural heritage is defined in section 12 of the Act as: 

(a) means the tangible and intangible elements that are important to the Aboriginal people of the State, and are recognised through social, spiritual, historical, scientific or aesthetic values, as part of Aboriginal tradition; and 

(b) includes the following:
(i) an area (an Aboriginal place) in which tangible elements of Aboriginal cultural heritage are present;
(ii) an object (an Aboriginal object) that is a tangible element of Aboriginal cultural heritage;
(iii) a group of areas (a cultural landscape) interconnected through tangible or intangible elements of Aboriginal cultural heritage;
(iv) the bodily remains of a deceased Aboriginal person (Aboriginal ancestral remains), other than remains that are buried in a cemetery where non-Aboriginal persons are also buried or remains that have been dealt with or are to be dealt with. 

What are the new tiers? 

There are three tiers of land activities that determine the level of due diligence required to be undertaken by a proponent. The tiers are based on the level of ground disturbance generated by the activity: 

1. Tier 1 is where there is no or minimal level ground disturbance but there is a risk to ACH. Activities in this tier may proceed but are subject to a requirement to undertake all reasonable steps to avoid or minimise harm to ACH. Examples may include:
   a. Field mapping and survey work;
   b. Remove sensing and other types of non-invasive survey work;
   c. Scientific research and sampling using handheld tools;
   d. Pest management activities.
2. Tier 2 is where there will be low-level ground disturbance. Activities in this tier require the proponent to undertake a DDA and obtain a permit from the Aboriginal Heritage Council. Examples include:
   a. Rehabilitation or revegetation work on previously disturbed areas;
   b. Geophysical surveys carried out on roads, road reserves or existing tracks and firebreaks;
   c. Controlled burning;
   d. Archeological or geological work involving collecting samples, machinery, light transport etc;
   e. Installation of new fixtures or features to the land.
3. Tier 3 is where there will be moderate or high levels of ground disturbance. In this tier, the proponent will need to undertake a DDA and develop an Aboriginal Cultural Heritage Management Plan in cooperation with the traditional owners. Examples include:
   a. Mining operations;
   b. Drilling;
   c. Earthworks;
   d. Forestry;
   e. Creation of new infrastructure; and
   f. Commercial and industry subdivisions and residential development. 

What is needed in a DDA? 

A due diligence assessment involves: 

1. An assessment of the risk of harm to ACH in the proposed land area to determine if authorisation, permit or a management plan is required;
2. The proponent notifying each ACH local service for the area, or alternatively each native title holder or knowledge holder for the area, of the proposed activity; and
3. If the activity is a tier 2 or 3 then the proponent must give each of the persons notified regarding the activity the opportunity to submit a statement about the person’s views on the risk of harm being caused to Aboriginal cultural from the proposed activity.

The application to the ACH Council must outline the details of the proposed activity, the characteristics of ACH of which the proponent is aware of and any risk of harm to ACH identified in the due diligence assessment. 

In what area should a DDA be undertaken? 

A DDA is to be carried out in relation to the activity area. Undertaking a DDA over as broad an area as practicable where the activity potentially may be carried out will assist in planning the activity to avoid or minimise harm to ACH.  

Where ACH is in the activity area and the activity is able to be altered or moved to avoid that ACH, the DDA will also need to include the area of the altered or moved activity. 

The new regime includes penalties of up to $1 million for individuals and up to $10m for corporations that damage cultural heritage sites, as well as potentially imprisonment. 

There will always be a degree of uncertainty with any major legislative change. If you are unsure about how these changes affect you, please reach out to the CCIWA commercial law team for legal advice on 0435 339 474 or via [email protected]