Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA)
As reported in our news previously, the WA Government announced on 9 August 2023 that the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act), which became operational on 1 July 2023, would be repealed and the original Aboriginal Heritage Act of 1972 (AHA) restored, with amendments.
The Aboriginal Heritage Legislation Amendment and Repeal Act 2023 was assented to on 24 October 2023 and came into operation on 15 November 2023 (other than Part 1, Part 3 Division 1 and section 30 which came into force on assent).
The amendments to the AHA are said to deliver a common sense approach. They include:
- the newly formed Aboriginal Cultural Heritage Council becomes the Aboriginal Cultural Heritage Committee, with majority Aboriginal representation and with essentially the same functions as the Committee established under the AHA to make recommendations to the Minister.;
- proponents and Native Title parties have the same right to apply to SAT for review of a Section 18 decision, with clear time frames and the Premier having the power to intervene in a decision of ‘State or regional significance’ to act in the interests of all Western Australians;
- existing and future Section 18 consents will now be subject to a condition that the owner must notify the Minister of any new information about an Aboriginal site to which the Section 18 consent applies. This reform is aimed at helping prevent another Juukan Gorge; and
- Section 18 Consents will transfer where there is a change in land ownership.
Following the commencement of the new Act, a number of processes and authorities introduced under the ACH Act transition to the new regime. This includes conversion of ACH Permits and ACH Management Plans issued under the ACH Act into Section 18 consents. Regulations to support the Act provide more clarity in relation to this transition.
The Aboriginal Heritage Act Guidelines published in November 2023 provide helpful assistance in determining whether a consent from the Minister for Aboriginal Affairs is required to undertake a proposed land use that may impact Aboriginal heritage, and avoid committing an offence under the AHA.