The Aboriginal Cultural Heritage Bill 2021 was passed by the WA State Parliament on 14 December 2021, and received Royal Assent on 22 December 2021 as Act No. 27 of 2021. The Act provides for the ultimate repeal of the Aboriginal Heritage Act 1972 (AHA) and the Aboriginal Heritage (Marandoo) Act 1992 (AHMA), among other changes.
This is despite:
- sustained opposition to the law from Aboriginal communities, Aboriginal corporations and peak bodies, native title representative bodies, and legal, anthropological and archaeological experts, among others
- the final report of the Federal Joint Standing Committee on Northern Australia concerning the destruction of Juukan Gorge only having been released on 18 October 2021 and calling for free, prior and informed consent, minimum standards for State and Territory legislation and a strengthened Federal legislative regime for Aboriginal cultural heritage
- the United Nations Committee on the Elimination of Racial Discrimination expressing its concerns about the law.
The Aboriginal Cultural Heritage Act 2021 will come into effect in stages to allow for new mechanisms contemplated by the Act to be established, regulations to be enacted and ongoing applications under the AHA to be processed and finalised. This is summarised below:
- On 23 December 2021:
- Part 1 concerning the commencement of the Act, definitions and objects and interaction with other legislation
- Part 15 (except division 3) concerning the amendment of the AHA to adopt a ‘transition period’ during which section 18 applications can continue to be made, subject to a 5-year maximum for consents and notification of any new information about Aboriginal cultural heritage that relates to the area after consent is given.
- On a day to be fixed (‘transition day’):
- Part 15 Division 3 which allows the AHA to continue for a further 6 months from transition day for the sole purpose of resolving ongoing applications or reviews initiated prior to the transition day
- Part 14 division 1 (except clauses 310 and 311), concerning the repeal of the AHMA.
- Six months after transition day (‘repeal day’):
- Sections 310 and 311 by which the entirety of the AHA and associated regulations are repealed.
- On a further day to be fixed (this would depend, for example, on when they were capable of being operational, which is likely to be some time after repeal day):
- All other provisions of the Act including in relation to:
- the new Aboriginal Cultural Heritage Council (Part 2, division 2)
- the new local Aboriginal cultural heritage services (Part 2, division 3)
- rights and duties in relation to Aboriginal cultural heritage (Part 3)
- the protection of areas of outstanding significance (Part 4)
- offences, penalties and compensation for harm (Part 5)
- the management of activities which harm Aboriginal cultural heritage (Part 6)
- Ministerial powers to give stop activity orders, prohibition orders and remediation orders (Part 7)
- Aboriginal cultural heritage agreements (Part 8)
- establishing, maintaining and accessing information about Aboriginal cultural heritage (Part 9)
- compliance measures including inspection, entry and seizure (Part 10)
- State Administrative Tribunal review powers (Part 12)
- making regulations and guidelines (Part 13 division 3)
- amendments to other laws (Part 16).
- All other provisions of the Act including in relation to:
Given the scale of the reforms, the significant transition period allowed for, the funding, consultation and recruitment processes to be undertaken, and the regulations to be prepared, it is expected to take some time before the full Act will be in effect. However, the content of Act, and the parallel process being undertaken by the Federal Minister for Indigenous Australians, the Federal Minister for Environment and the First Nations Heritage Protection Alliance to strengthen Federal Aboriginal heritage protections, are likely to influence practices and agreement making well before all aspects of the the Act come into effect.
Aboriginal communities and organisations as well as proponents are encouraged to start the process now of reviewing existing arrangements and resetting processes and expectations around heritage protection to align with the new regime and anticipate the evolving changes that could occur federally.
For more information about how these changes may affect you, contact Maria Lamattina at Perth Commercial Lawyers.