WA Introduces New Aboriginal Cultural Heritage Legislation

Wednesday 15 December 2021 @ 10.17 a.m. | Judiciary, Legal Profession & Procedure | Legal Research | Torts, Damages & Civil Liability

The Aboriginal Cultural Heritage Bill 2021 (WA) (56 of 2021) ('the Bill') was introduced into the Western Australian Legislative Assembly by Minister for Finance Tony Buti ('the Minister') on 17 November 2021. The purpose of the Bill is to replace the Aboriginal Heritage Act 1972 (WA) ('the AH Act') and the Aboriginal Heritage (Marandoo) Act 1992 (WA) (' the AHM Act').

Section 46(7) of the Constitution Acts Amendment Act 1899 (WA) requires a Bill imposing taxation to only deal with the imposition of taxation. The Aboriginal Cultural Heritage Amendment Bill 2021 (WA) ('the Amendment Bill') is such a Bill.

To this end the Bill is accompanied by the the Amendment Bill, which seek to support the cost recovery provisions provided for in the Bill. If passed, the Amendment Bill will amend provisions within the Bill to clarify that a prescribed fee imposed by regulations made under section 292 can include an amount that is a tax. 

According to the Minister's second reading speech:

"Whilst the AH Act was considered ground breaking at its time of enactment, it is widely acknowledged that the AH Act is outdated, ineffective and no longer fit for purpose. In particular, the AH Act does not take into account the rich diversity and extent of Aboriginal cultural heritage in Western Australia, contains outdated concepts of Aboriginal cultural heritage management and has not kept up to date with native title and other advancements that recognise Aboriginal people’s special connection to country."

The Bill's Explanatory Memorandum summarises that:

"The [Bill seeks to establish] a contemporary framework to value and protect Aboriginal cultural heritage in the State, and incorporates a balanced approach in the management of activities that may harm Aboriginal cultural heritage, to ensure beneficial outcomes for both Aboriginal people and the wider Western Australian community."

The Bill has passed both houses of Parliament and is currently awaiting assent.

Recognising Aboriginal Culture

The Bill recognises the fundamental role of Aboriginal cultural heritage in the lives and wellbeing of Aboriginal people. It confirms that Aboriginal people are the primary custodians of their heritage and contains provisions that seek to establish a statutory role for Aboriginal people in identifying, protecting and managing their heritage.

The AH Act establishes a statutory committee to evaluate the importance of Aboriginal cultural heritage on behalf of the Aboriginal community. Unlike the AH Act, the Bill provides that the Aboriginal people themselves are to determine what qualifies as Aboriginal cultural heritage and is afforded protection under its proposed provisions.

Definition of Aboriginal Cultural Heritage

The Bill provides a broad definition of "Aboriginal cultural heritage". This definition is intentionally broad in order to capture the living, historical and traditional nature, as well as its tangible and intangible elements of Aboriginal heritage. The Bill includes within this definition; Aboriginal places, Aboriginal objects, cultural landscapes, and ancestral remains.

The Aboriginal Cultural Heritage Council

The Bill seeks to establish the Aboriginal Cultural Heritage Council ('the ACH Council'). The ACH Council would take the form of a majority Aboriginal advisory body, and would provide strategic oversight of the Aboriginal cultural heritage regime.

The functions of the ACH Council would include:

  • providing advice to the Minister on heritage matters; 
  • designating local Aboriginal cultural heritage services; and
  • approving Aboriginal cultural heritage permits and Aboriginal cultural heritage management plans. 

The ACH Council would also play an important role in promoting understanding and appreciation of aboriginal cultural heritage and developing guidelines for best practice Aboriginal cultural heritage management.

Alignment with Native Titles

The Bill, according to the Minister's second reading speech would seek to: 

"... ensure alignment with the recognition of native title rights and interests. The new heritage regime dovetails into native title processes and recognises native title bodies, including prioritising native title prescribed bodies corporate in the designation of local ACH services and recognising agreements entered into under the Native Title Act 1993 (Commonwealth) (NT Act) that meet the standards of the proposed Act."

Accordingly a key feature of the Bill is a tiered approval system that will assist in determining how proposed activities may be authorised, avoided, or managed to minimise risk of harm to Aboriginal cultural heritage.

Offences for Unauthorised Harm

The Bill also sets out the offences in relation to unauthorised harm to Aboriginal cultural heritage. There are three levels of harm under the legislation: serious harm; material harm; and harm.

The Bill also proposes significant penalties for contraventions. The Bill also proposes stronger powers to secure compliance and new Ministerial powers to issue stop activity orders, prohibition orders and remediation orders.

The Aboriginal Cultural Heritage Directory

The Bill seeks to establish an Aboriginal Cultural Heritage Directory ('the ACH Directory'), which would be a central depository for information and documents about Aboriginal cultural heritage in the State. This ACH Directory will be a planning and research tool that will be administered in a culturally appropriate manner with culturally sensitive information made available only with the explicit consent of relevant knowledge holders. 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Aboriginal Cultural Heritage Bill 2021 (WA), second reading speech and explanatory material available from TimeBase's LawOne Service

Aboriginal Cultural Heritage Amendment Bill 2021 (WA), second reading speech and explanatory material available from TimeBase's LawOne Service

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