Native Title Year in Review 2022-2023

Stop press: WA's new Aboriginal heritage laws to be repealed

On 8 August 2023 the Premier of Western Australia announced that the WA Government will repeal the new Aboriginal cultural heritage laws and restore the original Aboriginal Heritage Act 1972 (WA), with simple and effective amendments to help prevent another Juukan Gorge incident. The Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (WA) was introduced on 9 August 2023.

The below article was written on 25 July 2023 and represents the law at that time.

What you need to know

Western Australia's new Aboriginal Cultural Heritage Act 2021 (WA) substantially commenced on 1 July 2023.

The new Act contains a material shift in heritage regulation following the destruction of Juukan Gorge in 2020, by:

• expanding the scope of protected Aboriginal heritage; 
• putting knowledge holders in the centre of decision making and consultation for proposed activities on country;
• creating a new tiered activity and approvals process for proponents; and
• increasing penalties for offences and timeframes for commencing prosecutions.  

Only in the months leading up to commencement did the State Government finalise and release the many statutory guidelines and supporting documents that contain so much of the detail that proponents need to follow, in order to ensure compliance with the new regime.

There is now a compliance pathway for proponents to follow, although the complexity of the regime introduces delay and cost risk for project timelines – proper planning and implementation is, as always, the key.

What you need to do

Proponents must, as always, prioritise their focus on maintaining and strengthening relationships with their Traditional Owner stakeholders. 

The time is now to ensure internal policies and procedures are updated and rolled out through internal training programs, to ensure compliance.

See our practical tips to ACH implementation for proponents, prepared by our Ashurst Risk Advisory team.

Engage with the Department of Planning, Lands and Heritage, and the new ACH Council, to raise any implementation issues as the new regime is rolled out, to ensure the State's Implementation Committee takes those into account in the initial implementation phases and to inform likely refinements to the guidelines.   

Aboriginal cultural heritage legislation commences with raft of supporting guidelines 

The Aboriginal cultural heritage landscape in Western Australia has shifted significantly in the last 2-3 years as a result of a number of factors, now culminating in the complete reform of the Aboriginal Heritage Act 1972 (WA) (1972 Act).  

Among these factors have been the increased global focus on Indigenous rights, the heightened importance of a proponent's social licence to operate and, in particular, the 2020 destruction of the Juukan Gorge rock shelters. 

The new Act entirely reforms Aboriginal cultural heritage protection in WA, making a number of fundamental changes, including: 

• a new definition of Aboriginal cultural heritage, which is broader than before and captures tangible and intangible elements;
• new management structures, notably the Aboriginal Cultural Heritage Council (ACH Council) as the new peak, strategic body for Aboriginal heritage matters including the issuing of ACH Permits, and Local Aboriginal Cultural Heritage Services (LACHS), which can be designated as a single point of contact for cultural heritage in an area;
• a four-tiered system of activities with a corresponding process for authorising each tier, aligned with all new approvals pathways; and
• broader offence provisions and far higher penalties for individuals and corporations, including prison terms.  Prosecutions can now also be commenced within six years after the date of the offence (up from the one year window in the old 1972 Act). 

For more information about the lead up to the commencement of the new Act, see our Native Title Year in Review 2021-2022 article "Western Australian Aboriginal heritage law reform amendments passed but still much work to do".

Statutory guidelines published in support of Act's implementation

The WA Department of Planning, Lands and Heritage has developed and published statutory guidelines to support the operation, implementation and interpretation of the new Act (the Guidelines).  While there are many of them, the key Guidelines for proponents to note are the: 

• ACH Management Code, which sets the framework for how proponents must undertake a due diligence assessment (DDA) before carrying out any activities in Western Australia; 
• Activity Tiers Guidelines, which provide a non-exhaustive list of the tiered activities (classified as Exempt, Tier 1, Tier 2 or Tier 3) based on their scale, nature and permanent effect on land;
• Investigation Guidelines, which set out the types of investigation a proponent should undertake for the purposes of a DDA;
• Survey Report Guidelines, which specify the circumstances in which a heritage survey report (arising from a heritage survey) can be relied on to satisfy a DDA for a proposed activity (and, in turn, relied on for the benefit of the due diligence defence should heritage be inadvertently harmed in the conduct of the relevant activities); and
• Consultation Guidelines, which establish expectations for how proponents will consult with LACHS and knowledge holders on Aboriginal cultural heritage management plans.

Cultural Heritage Survey Report and Investigation Guidelines

Cultural Heritage Survey Report Guidelines concern the ability to rely on past heritage survey reports when conducting a DDA.  

Whether a past survey report can be relied on will depend on a number of factors.  Key among these are: 

• the age of the survey report; 
• the identity and knowledge of survey participants;
• whether the report covers archaeological and ethnographic values; and 
• whether the (then and current) PBC or claim group endorsed the report or nominated the survey participants.

While all survey reports need to be assessed against the guidelines, proponents will need to heavily scrutinise any reports older than 1 January 2013 in particular, to ensure they satisfy the requirements in the Guidelines and can therefore continue to be relied on. Reports older than 1 January 2013 are increasingly considered less reliable, and there are only very narrow avenues through which they can be formally "relied upon" for the purposes of a DDA.

The Guidelines also prescribe what must be included in new survey reports that are now produced, in order to ensure DDA reliance.  While the "new" requirements apply to reports dated on or after 1 July 2024, the State is already encouraging these new standards going forward from 1 July 2023 as 'best practice'.  As a result, new survey reports should contain more specific information including:

• an express endorsement by the Aboriginal party; 
• a list of survey participants and identification of their knowledge holder status; 
• the information provided to the Aboriginal party or survey participants relating to the purpose and context of the survey; and
• a description of the survey methodology and information provided by the survey participants.

A person proposing to carry out an activity that may harm cultural heritage must undertake a DDA in accordance with the ACH Management Code.  If a proponent cannot from the DDA determine whether Aboriginal cultural heritage is present in the area of a proposed Tier 3 activity, the proponent must then conduct an investigation.  

The Investigation Guidelines set out the three types of investigation a proponent can undertake, being:

• ACH investigation meeting:  The engagement between the proponent and the Aboriginal party must address specific matters in writing, such as the area of the engagement, location of Aboriginal cultural heritage and whether tangible or intangible, and any limitations that may have prevented all the Aboriginal cultural heritage being identified; 
• ACH work area clearance survey:  Identifies an area clear of Aboriginal cultural heritage but does not provide information on that heritage (ie location or characteristics); 
• ACH avoidance survey:  Identifies Aboriginal cultural heritage that may be present in an area and provides the boundary of its location.  It does not provide information on the characteristics of the identified Aboriginal cultural heritage. 

Transitioning consents

Section 18 consents granted by the Minister under the 1972 Act, which were notified (effectively applied for) before 23 December 2021, have been grandfathered and will remain valid until 1 July 2033.  

They will continue to be valid after that time if the proponent both (1) applies to the Minister for an extension, and (2) the Minister is of the opinion that the purpose in the section 18 consent has been substantially commenced.

The Determining "Substantially Commenced" Guidelines prescribe the criteria to assess this question.  They include whether: 

• the land is being used for the purpose in the section 18 consent; 
• licences, permits and approvals have already been obtained for that purpose; and
• certain activities have been completed (and whether they have been completed over any other land in the larger project).  These activities include site clearing works, construction of roads and pathways and the installation of new services like power, water or telecommunications.  

Implementation updates

A number of stakeholder groups called on the State Government to delay the Act's commencement. 

While the State pushed ahead with the new Act's commencement, the State has established an implementation working group (for six months) to monitor, report and address issues that might arise in the initial stages of implementation.  The group will include members of key industries impacted by the Act such as traditional owners, mining, property, farming and local government.  

In its Statement of Regulatory Intent, the State Government also announced with would take an "education-first" approach to compliance with the Act for the first 12 months.  While this applies to technical/minor breaches, this will not (as some people have suggested in public commentary) prevent the State from prosecuting under the harm offences, which the State has made clear in the Statement itself. 

Our Ashurst Risk Advisory team take a strategic approach to assessing the threats and opportunities driven by the growing importance of social licence and environmental custodianship.  They are working extensively with clients on being ACH Act ready – so reach out to Elena Lambros (Partner) or Kate Wilson (Director) if you require implementation assistance, or want to discuss any of their practical tips above.

Key insights

Proponents must, as always, prioritise their focus on maintaining and strengthening relationships with their Traditional Owner stakeholders. 

The time is now to ensure internal policies and procedures are updated and rolled out through internal training programs, to ensure compliance.

This includes undertaking a review of existing relationships, heritage agreements, survey coverage, approvals and heritage reports, with a view to identifying operational gaps that need to be filled. 

Proponents should also consider the extent to which existing agreements may need to be varied, new agreements required or contractual support obtained from Traditional Owner stakeholders.

Finally – remember to engage with the Department of Planning, Lands and Heritage, and the new ACH Council, to raise any implementation issues as the new regime is rolled out, to ensure the State's Implementation Committee takes those into account in the initial implementation phases and to inform likely refinements to the guidelines. 

Authors: Andrew Gay, Partner; Cheyne Jansen, Counsel; Jordan Soresi, Lawyer; Kate Wilson, Director Ashurst Risk Advisory and Elena Lambros, Partner Ashurst Risk Advisory.