Frequently asked questions

Once passed into law, the Aboriginal Cultural Heritage Bill 2020 (the Bill) will replace the outdated Aboriginal Heritage Act 1972.

The Bill establishes a modern approach to protecting Aboriginal cultural heritage in Western Australia that will reset the relationship between land users and Traditional Owners and transform how Aboriginal cultural heritage is identified, protected and managed.

The Bill focuses on agreement making between traditional owners and land users. It will be a statutory requirement that land users undertake meaningful consultation with Traditional Owners, aimed at reaching agreement based on informed consent, for activities that may impact cultural heritage. The Bill will also establish a tiered approvals system that considers the proposed land use and the level of potential heritage impact.

Legislation proposed under the Bill:

• recognises the importance of Aboriginal cultural heritage to Aboriginal communities and the wider community;
• recognises, protects and conserves Aboriginal cultural heritage;
• balances outcomes for Aboriginal cultural heritage protection and economic development across Western Australia; and
• promotes appreciation of Aboriginal cultural heritage as an important aspect of Western Australia’s identity.

The proposed changes align with the Commonwealth Native Title Act 1993.

The emphasis of the new legislation is to give Aboriginal people a voice and empower them to make agreements, however the Minister for Aboriginal Affairs will have authority to make a decision where an agreement between parties cannot be reached.

The Aboriginal Heritage Act 1972 was the first legislation of its kind in Australia designed to protect Aboriginal places and objects. However, after 48 years, the Act is outdated, inefficient, ineffective and has little credibility with Aboriginal people and industry alike.

When the State Government began an extensive review of the current legislation in 2018, there was a clear message from Aboriginal people, local government and industry stakeholders that the Act is out of step with modern expectations and should be replaced with new legislation rather than amending the current Act.

The Bill is the culmination of more than two years of consultation with Aboriginal people, industry stakeholders and the broader Western Australian community including more than 130 submissions in response to a Consultation Paper released in March 2018, and a further 70 submissions on a Discussion Paper the following year.  Both consultation processes included extensive engagement with Aboriginal people and industry stakeholders across the State, which has continued throughout the drafting process.

The Bill is a modern and progressive legislative framework that recognises and respects the right of Aboriginal people to negotiate outcomes for projects and opportunities on their land and waterways. 

A key focus of the Bill is to empower Traditional Owners to establish agreed management plans  with proponents to ensure any proposed activity avoids or minimises the risk of harm to Aboriginal cultural heritage.

Provisions under the Bill will improve the approvals process, provide rights of review to all parties, strengthen compliance and enforcement and improve record-keeping and transparency. Management plans will need to include a process to consider new information that may come to light, and allow the parties to amend them by mutual consent.

A new Aboriginal Cultural Heritage Council will be the peak strategic body for Aboriginal heritage matters, providing strategic oversight for the management and protection of Aboriginal cultural heritage. At a community or regional level, the Bill will also establish Local Aboriginal Cultural Heritage Services which will empower Traditional Owners to negotiate and reach agreements with land users for protecting cultural heritage. The current Aboriginal Cultural Materials Committee (ACMC) will no longer exist.

Aboriginal people are best placed to identify what is and isn’t their cultural heritage. The Bill has an expanded definition of Aboriginal cultural heritage, recognising Aboriginal cultural heritage as a living culture and including Aboriginal places, objects, cultural landscapes and ancestral remains.

Aboriginal people in Western Australia will be empowered to make decisions and negotiate outcomes relating to their cultural heritage. 

It will be a statutory requirement that land users undertake meaningful consultation with Traditional Owners, aimed at reaching agreement based on informed consent, for activities that may impact cultural heritage. The Minister for Aboriginal Affairs will have authority to make a decision where an agreement between parties cannot be reached.

The Bill will also establish a tiered approvals system that considers the proposed land use and the level of potential heritage impact. Local Aboriginal Cultural Heritage Services will give Aboriginal people an active role in the management of their cultural heritage.

 It is expected the Bill will be introduced to Parliament after the State election in 2021.

The Bill provides for a new Aboriginal Cultural Heritage Council to be established as the peak strategic body for Aboriginal heritage matters, providing strategic oversight for Aboriginal cultural heritage management and protection. The Council may have certain decision-making powers delegated by the Minister for Aboriginal Affairs. 

The Chair of the Council will be required to be an Aboriginal person.  Other members of the Council will reflect a range of technical expertise, skills and knowledge with a preference for the appointment of Aboriginal people.

Local Aboriginal Cultural Heritage Services (LACHS) will also be established to empower Traditional Owners to negotiate and reach agreements with land users for protecting cultural heritage.

Incorporated bodies to be known as a Local Aboriginal Cultural Heritage Services will be established to provide Aboriginal cultural heritage services for an area.

These services will operate as a single contact point and one-stop-shop for local Aboriginal people and proponents. They will work with proponents to progress Aboriginal Cultural Heritage Management Plans and identify and coordinate who should be consulted.

The Aboriginal Cultural Heritage Council will appoint and have oversight of a Local Aboriginal Heritage Service, based on provisions in the new legislation and can revoke or suspend a service if it is not performing its functions as required.

Any Aboriginal organisation can apply to become a Local Aboriginal Cultural Heritage Service and must demonstrate broad support from the Aboriginal knowledge holders and any native title parties in the area it wants to represent.

The process for agreement-making between traditional owners and proponents in the Bill includes a review function to consider new information that may come to light and allow the parties to amend the agreements by mutual consent. Aboriginal parties and proponents will both be afforded rights of review against key decisions made under the Bill.

The Aboriginal Cultural Heritage Bill 2020 prioritises notification and consultation with Aboriginal people, with a focus on agreement making and the collaborative development of Aboriginal Cultural Heritage Management Plans.

The Bill removes the controversial section 18 approval process and establishes a new tiered assessment system that considers the type of proposed land use activity and the level of impact on the heritage value on the land.

In assessing potential impacts on Aboriginal cultural heritage, the Bill proposes four categories of activities:

• A range of activities including recreational activities, emergency situations and minor developments will be exempt from requiring approval.
• Activities considered to be of minimal impact are also exempt from requiring approval. A proponent can seek confirmation from the Department that the proposed activity is a minimal impact activity.
• A permit is required for low impact activities. Proponents will be required to notify the Local Aboriginal Cultural Heritage Service or relevant Aboriginal parties prior to submitting an application for a permit. The new Council will also publish any permit application online prior to deciding whether to grant the permit.
• An Aboriginal Cultural Heritage Management Plan is required for all activities considered to be of medium to high level impact. Proponents are required to consult with the Local Aboriginal Cultural Heritage Service, or with relevant Aboriginal parties, and to work with those groups who will be a party to any agreed management plan.
• Where agreement cannot be reached, the Bill establishes a Government authorisation process. Proponents will need to provide details of the negotiation undertaken with the Aboriginal parties in order to apply to this process. The Council can act as a mediator to facilitate agreement on a plan between the parties and, where agreement is still not reached, may propose its own plan for the Minister’s authorisation. The Council may also recommend that a submitted plan not be authorised and the Minister will be able to refuse to authorise any such plan.
• Ministerial authorisation of an Aboriginal Cultural Heritage Management Plan will be required for any activities that may cause harm to Aboriginal cultural heritage of State significance.

Activities that could impact Aboriginal cultural heritage will be detailed in the Regulations and are classified as follows:

• Exempt activities include recreational activities such as walking and photography, travelling on existing road or tracks, emergency situations and minor residential developments.
• Minimal impact activities may include light vehicle patrols, metal detecting and maintaining and refurbishing existing facilities, including recreation and camping facilities, water points, signs and other structures.
• Low impact activity means any activity that involves minor ground disturbance, and may include digging pitfall traps and temporary trenches for small animals; and establishing temporary camps for exploration, environment or conservation purposes, where the establishment of the temporary camp does not require the removal of trees or shrubs and does not require any earthworks.
• Medium-High impact activity means an activity that involves a moderate to high level of ground disturbance and may include mechanised ground disturbance, broad acre land clearing in areas where there has been no or minimal previous disturbance and establishment of new infrastructure easements.

The final list of activities will be set out in regulations and the State Government will consult with stakeholders in the development of these regulations.

Proponents will be required to undertake a due diligence assessment in accordance with an Aboriginal Cultural Heritage Management Code (to be developed by the new Council once established), to determine whether the proposed land use will impact Aboriginal cultural heritage and the likely level of impact it will cause.

Details of minimal, low and medium to high impact activities will also be set out in regulations. The Bill sets out the public notice and consultation process that the Council must undertake in the development of the Code and other guidelines. 

An Aboriginal Cultural Heritage Management Plan must identify the proponent, the area to which it relates, each Aboriginal party to it and the activity proposed to be undertaken. It must also include an Aboriginal Heritage Impact Statement that describes the potential impact of the proposed activity on any known Aboriginal cultural heritage, set out how the activity will be managed in order to avoid or minimise the risk of harm being caused to Aboriginal cultural heritage, outline the extent to which harm to Aboriginal cultural heritage is authorised, including any conditions to be met. The plan must ensure that contingency arrangements are in place for instances where new Aboriginal cultural heritage is discovered or new information about the significance of existing Aboriginal cultural heritage emerges.

The application for approval of Aboriginal Cultural Heritage Management Plan must include evidence that each Aboriginal party has given informed consent to the plan and include details of consultation that has been undertaken including responses received.

Once appointed, the new Aboriginal Cultural Heritage Council will develop guidelines and standards for management plans, based on the provisions of the new legislation. The supporting regulations will also set out templates for the Aboriginal Cultural Heritage Management Plan.

It is expected that anthropological and environmental surveys may be required by proponents as part of their due diligence, and to support the development of management plans.

Native title agreements or previous heritage agreements between proponents and Aboriginal parties, may be used to satisfy the Aboriginal Cultural Heritage Management Plan requirements in the Bill.

There will be a statutory period to negotiate and reach agreement on an Aboriginal Cultural Heritage Management Plan. The Bill establishes an alternate process for situations where no agreement can be reached The Council will seek to mediate and facilitate an agreement between both parties but may recommend a plan submitted by either party, or develop its own plan for authorisation by the Minister for Aboriginal Affairs.

To assist with the smooth transition from the Aboriginal Heritage Act 1972 to the new system, the Bill includes a number of transitional provisions. These provisions will ensure previous approvals (including Section 18 consents) will continue to be recognised. They will also be tied to the specific proposals they relate to, meaning that they can be transferred to new landowners providing the purpose and footprint of the proposal does not change. 

The Bill requires decisions, reasons for decisions and recommendations regarding Aboriginal cultural heritage to be published, and for notification to be given to relevant parties. 

A current list of Aboriginal heritage sites is available on the Department of Planning, Lands and Heritage website.

The Bill establishes new offences of harm, material harm and serious harm to Aboriginal cultural heritage.

Offences of serious harm to Aboriginal cultural heritage can attract a penalty of up to $10million for a body corporate, compared with the maximum penalty of $100,000 or two years imprisonment prescribed in current legislation.

An individual responsible for causing serious harm can be penalised up to $1million, or imprisonment for up to five years, compared with $40,000 and up to two years imprisonment under the current legislation.

Stronger enforcement options will also apply, including stop activity orders, prohibition orders and remediation orders and extended timelines for prosecution from 12-months to six years.

The Bill includes provisions to assist with a smooth transition from the current Act to the new legislation. These will ensure previous approvals (including section 18 consents) will be tied to the specific proposals they relate to, meaning that they can be transferred to new landowners providing the purpose and footprint of the proposal does not change.

The current Act will continue to operate until the Bill comes into full effect.

The ACMC will also continue to operate until the new Council is established and regulations to support the new legislation are prepared.