Native Title Year in Review 2023-2024

What you need to know

• The WA Government has restored the Aboriginal Heritage Act 1972 (WA) with some additions and amendments.
• The new 1972 Act contains key changes to WA's Aboriginal cultural heritage framework that was in place before the commencement and repeal of the Aboriginal Cultural Heritage Act 2021 (WA).
• These key changes include return of the section 18 consent regime; introduction of the 'new information' regime, applying to all existing and future section 18 consents; permitting landowners to transfer section 18 consents; and prohibiting "gag clauses".
• In addition to these changes, the Amendment Regulations introduce distinct categories of 'native title party' and timeframes for the section 18 process.

What you need to do

• Proponents must, as always, prioritise maintaining and strengthening relationships with Traditional Owner stakeholders.
• Internal policies and procedures should be updated and rolled out through internal training programs, to ensure compliance with WA Aboriginal cultural heritage reform.

What legislation now applies in WA?

On 15 November 2023, following repeal of the Aboriginal Cultural Heritage Act 2021 (WA) (2021 Act), the WA Government restored the Aboriginal Heritage Act 1972 (WA) (old 1972 Act) with some additions and amendments (new 1972 Act).

The supporting Aboriginal Heritage Amendment Regulations 2023 (WA) (Amendment Regulations), which amends the Aboriginal Heritage Regulations 1974 (WA) (old Regulations), commenced on the same day.

We wrote about the 2021 Act in our Native Title Year in Review 2022-2023 article "1 July 2023 – WA's new Aboriginal heritage laws have commenced".

Key changes to the new 1972 Act

Revised section 18 consent

The new 1972 Act reinstates the section 18 consent process that existed under the old 1972 Act with some significant changes. The main difference is that the section 18 consent process and historic and future section 18 consents are now subject to the 'new information' regime, outlined below.

Notice of section 18 consent decisions are published on the Department of Planning, Lands and Heritage's (DPLH) website, pursuant to new Ministerial obligations.

'New information' regime

The section 18 consent process is now subject to the 'new information' regime, by which all section 18 consents (including historic section 18 consents) are now subject to 'new information' requirements, where:

• proponents must inform the Minister if new information about an Aboriginal site becomes known; and
• the Minister can (either because a proponent has notified them, or because it has come to their attention via other means) amend the section 18 conditions, add conditions, confirm the consent or revoke the section 18 consent altogether.

While making such a decision, the Minister can suspend the operation of section 18. This regime goes further than the 2021 Act (where the 'new information' regime did not apply to historic section 18 consents).

The new 1972 Act provides threshold dates for when these requirements are triggered. Most historic section 18 consents likely fall into the category of being notified before 23 December 2023 and new information becoming known on or after 1 July 2023. In any case, owners of land subject to a section 18 consent will need to comply with the new positive obligation to notify the Minister (or risk breaching their consent conditions, which is an offence under section 55 of the new 1972 Act).

SAT review of section 18 decisions

The new 1972 Act also provides the right for the proponent or native title party to seek State Administrative Tribunal (SAT) review of any Ministerial decision that flows from 'new information' (even if the Minister decides to simply 'confirm' the section 18).

Problematically, the obligation to notify new information is at odds with circumstances where Traditional Owners request / require proponents to keep survey information confidential.

In addition to this new review provision for proponents and native title parties, the new 1972 Act also provides the Premier with a power to determine the outcome of a SAT review application where it raises issues of State or regional importance. The landowner and native title party can make submissions as part of this process. The Premier must take into account any submissions made, the general interest of the community, and any other matters considered relevant.

Transfer of section 18 consent

The new 1972 Act requires landowners to notify the Minister where there is a change in ownership of land the subject of a section 18 consent. The Minister will have the ability to amend the consent if satisfied that the consent does not "have its intended effect" because of the change in ownership. Alternatively, a landowner can apply to the Minister to revoke the section 18 consent where there is a change in ownership of the land.

Failure to notify the Minister within 14 days of a change of ownership of land is an offence under the new 1972 Act.

Prohibition on "gag clauses"

Under the new 1972 Act, native title parties are now able to oppose section 18 consents and seek review of section 18 Ministerial decisions, regardless of any current agreement with any proponent.

The new 1972 Act provides that the provision of a contract or other agreement that would otherwise prohibit or have the effect of prohibiting a native title party from making an application for SAT review, commencing or being heard in proceedings in relation to a section 18 consent decision, is of no effect.

Supporting policy and guidelines

To support the re-introduction of the new 1972 Act, the Department has published accompanying guidelines:

• a consultation policy for section 18 applications (Policy); and
• new guidelines (Guidelines).

Both the Policy and the Guidelines talk to key issues such as the:

• matters to be considered by landowners in determining whether a section 18 may be required;
• content to be included in or addressed by a section 18 application;
• level of consultation expected of proponents;
• 'new information' regime; and
• transfer of ownership, among other things.

Other notable changes

Other notable changes to WA's Aboriginal cultural heritage regime forming part of the legislative updates include:

• any Aboriginal cultural heritage permit (ACH Permit) and any Aboriginal cultural heritage management plan (ACH Management Plan) granted under the 2021 Act becomes a section 18 consent under the new 1972 Act;
• the Aboriginal Cultural Heritage Council under the 2021 Act will effectively operate under the new 1972 Act in place of the old Aboriginal Cultural Material Committee. It will now be called the "Aboriginal Cultural Heritage Committee" (ACHC); and
• the Aboriginal Cultural Heritage Directory under the 2021 Act reverts to the 'Register' under the 1972 Act.

Key changes in the Amendment Regulations

The Amendment Regulations set out additional detail on matters covered in the new 1972 Act, including in relation to the process for section 18 applications.

Additional categories of 'native title party'

The Amendment Regulations create additional categories for what constitutes a 'native title party' under the new 1972 Act, in addition to determined native title holders and native title claim groups. The expanded definition includes, among other things, the Murujuga Aboriginal Corporation, the Badimia Land Aboriginal Corporation and native title representative bodies and service providers (such as CDNTS, NTSG, KLC and YMAC). Most of these parties are only applicable if there is no other native title party.

Timeframe and notices for the section 18 consent process

The Amendment Regulations set out timeframes for various steps as part of the section 18 process, as follows:

The Amendment Regulations also require that proponents giving notices under section 18 and providing 'new information' under a section 18 must do so using the Department's specified online management system.

Aboriginal Cultural Heritage Committee (ACHC)

The Amendment Regulations set out the procedures that apply to the new ACHC, including nominations, terms, subcommittees, disclosure of conflicts, holding meetings, quorum and voting requirements.

The Amendment Regulations also allow the ACHC to request further information in relation to a section 18 application where a landowner has made that application.

Applicable penalties

The Amendment Regulations amend and clarify penalties that apply for some offences that already exist under the old Regulations. For example, the penalty for entering or remaining on a protected area to which the public is not admitted has increased from $100 to $1,000.

Fees Regulations and Transitional Regulations

The Aboriginal Heritage (Fees) Regulations 2023 (WA) (Fees Regulations) and the Aboriginal Heritage (Transitional Provisions) Regulations 2023 (WA) (Transitional Regulations) also commenced on 15 November 2023.

The Fees Regulations set out the fees that are payable under the new 1972 Act for section 16 and section 18 applications.

• Where a 'commercial proponent' applies for a section 16 authorisation, the fee is $250, plus $5,096 for each 'proposed investigation site', payable within 14 days of the application. Proposed investigation sites mean the relevant places that are proposed to be entered, excavated, examined or removed.
• Where a 'commercial proponent' applies for a section 18 consent, the fee is $250, plus $5,096 for each 'identified place', payable within 14 days of the application. Identified places means the relevant places that are or may be Aboriginal sites.

The Transitional Regulations set out additional detail in relation to various transitional matters associated with the repeal of the 2021 Act and the commencement of the new 1972 Act, including Aboriginal remains and objects, protected areas, ACH Permits and ACH Management Plans, defences, remediation and compliance.

Want to know more?

• 1 July 2023 - WA's new Aboriginal heritage laws have commenced, 25 July 2023 – Explains the new Aboriginal heritage regulatory regime in WA and sets out practical tips for implementation.
• Western Australian Aboriginal heritage law reform amendments passed but still much work to do, 11 July 2022 – Provides information about the lead up to the commencement of the 2021 Act.

Authors: Andrew Gay, Partner; and Ellise O'Sullivan, Senior Associate.