A Whole New (Cultural) World…Are You Ready?

We are now just weeks away from a new heritage regime in Western Australia, with the Aboriginal Cultural Heritage Act 2021 (WA) (the Act) becoming operative as of 1 July.

As the new Act will significantly impact land users across WA, it is paramount stakeholders take a proactive approach with regards to early consultation and engagement with a view to managing activities that may harm Aboriginal Cultural Heritage (ACH).

Whilst we are still waiting for the substantive Aboriginal Cultural Heritage Regulations 2022 (Regulations) to be made available, the Department of Planning Lands and Heritage (DPLH), have now released the final versions of a number of key guiding documents in support of the Act.

The Act and related guidelines are designed to guide proponents and support Aboriginal people in navigating the new heritage regime, particularly with regards to the management of any potential risk of harm risk to ACH within the project area.

Land use will fall into 4 categories (Tiers), including an exempt category and will be set out in the Regulations. The authority pathway required under the Act will be determined by the proposed activity / land use. Tiers 2 and 3 will require comprehensive consultation (either in the form of an ACH Permit, or ACH Management Plan). Importantly the due diligence assessment (DDA) will apply to all activities, having regard to their level of ground disturbance.

Related Agreements

There is provision under the Act to use your ‘related agreement’ to discharge some of your DDA obligations.

A related agreement must contain provisions about the management of ACH, and the carrying out of the activity in the area in relation to which your authorisation is sought, as well as being between the proponent and the interest Aboriginal party.

For example, an Indigenous Land Use Agreement (ILUA), Noongar Standard Heritage Agreement (NSHA), Standard or Alternative Heritage Agreement (SHA / AltHA) or other like heritage agreement mentioned in the Native Title Act 1992 (WA) section 31(1)(b) may be a related agreement.

Existing approvals

If you have an existing valid consent to impact ACH under a section 18 approval (under the existing Aboriginal Heritage Act 1972) (AH Act) which was given prior to 23 December 2021, those approvals will be valid for 10 years from 1 July 2023.

There is provision under the Act in situations where you have substantially commenced the purpose or activity for which your consent was granted, to have those consents extended. If you have not been considered to have substantially commenced, you will be required to gain your consent under the new Act, and most likely in the form of an ACH Management Plan.

DPLH Implementation Workshops

DPLH are currently facilitating Implementation Workshops throughout the State to support education for stakeholders regarding their obligations arising out of the Act.

Some key take aways from the first workshops (held 24 May) include:

  1. If ACH exists on the ground and its important to an Aboriginal person, then its protected, regardless of whether it is registered or not. Importantly, this is the same as under the AH Act.
  2. If a proponent does not have a DDA document consistent with the obligations arising from the Act and associate guiding documents (more particularly the Management Code) then come 1 July they will need to conduct further due diligence to ensure compliance and the appropriate authority pathway is achieved. This is only relevant if there is risk of harm to ACH on the site.
  3. DPLH are developing ‘Investigation Guidelines” to assist the proponent on the level and type of investigation required from a DDA perspective.
  4. The statute of limitation period has been increased from 12 months to 6 years regarding harm to a site.

If you have any questions regarding the implementation of the Act, or if you think you may need a ‘diagnostics check’ to ensure compliance with your new heritage obligations, please reach out to Jessica Pollock and Craig Wallace.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.