The Western Australian State Government recently released the draft Aboriginal Cultural Heritage Bill 2020 (Bill) for public consultation. The Bill establishes a modern approach to protecting Aboriginal cultural heritage.
If passed, the Bill will repeal the Aboriginal Heritage Act 1972 (Cth) (Current Act). There will be significant implications for miners and project proponents. We recommend you carefully consider the implications of the proposed changes for both current and proposed projects.
It is timely to review existing approaches to managing Aboriginal cultural heritage risk in light of the clear and ongoing messaging from shareholders and other stakeholders following the destruction of the Juukan Gorge caves.
A new approach to protecting Aboriginal cultural heritage
Contemporary management principle and practices
The Bill broadens the concept of Aboriginal cultural heritage by recognising traditional and living cultural heritage; and cultural landscapes and Aboriginal ancestral remains, in addition to places and objects.
The Aboriginal Cultural Materials Committee will be abolished and replaced with the Aboriginal Cultural Heritage Council (Council). Its responsibilities will include: the appointment of local Aboriginal Cultural Heritage (ACH) services, the issue of ACH permits, and involvement in preparing Aboriginal Cultural Heritage Management Plans (ACHMP).
Aboriginal people will have the opportunity to have a formal management role over Protected Areas.
The Register under the Current Act will be replaced with a Directory of Aboriginal Cultural Heritage. The Bill imposes a duty on any person to report Aboriginal cultural heritage, except for Aboriginal people who are acting in accordance with rights, interests and responsibilities under Aboriginal tradition.
The Minister will have the power to issue stop activity orders, prohibition orders and remediation orders.
Penalties for unauthorised impacts
The Bill introduces measures to address unauthorised impacts and provides significant higher penalties for offences relating to harming Aboriginal cultural heritage. These include a fine of up to $10 million for serious harm to Aboriginal cultural heritage for a body corporate, and $1 million or imprisonment of 5 years for an individual.
New approvals system
The Bill introduces a tiered land use approvals system.
A person intending to carry out an activity is required to undertake a due diligence assessment, unless it is an exempt activity or the ACH Management Code provides to the contrary. A due diligence assessment is a preliminary determination about whether the activity will affect Aboriginal cultural heritage, and, if so, the degree of impact and who must be notified of, or consulted about, the proposed activity.
Activities are classified as follows (examples are those provided by the Department of Planning, Lands and Heritage), and none of them must be in a Protected Area
Exempt activity:
includes recreational activities such as walking and photography, travelling on existing road or tracks, burning activities, vegetation clearing, minor residential developments. No approval required.
Minimal impact activity:
an activity with no, or minimal level of, ground disturbing activity (as prescribed). Examples include light vehicle patrols, metal detecting and maintaining existing recreation and camping facilities. CEO may provide advice that an activity is a minimal impact activity. No approval required if: a due diligence assessment is done; and the activity is done so as to avoid or minimise risk of harm to Aboriginal cultural heritage.
Low impact activity:
an activity that involves low level of ground disturbance. Examples include digging pitfall traps and establishing temporary camps for exploration, not requiring the removal of trees or shrubs, or earthworks. Prior notification to local ACH service (or if none, each native title party, knowledge holder or native title representative body) is required. Persons notified may submit to the proponent a statement about the person’s views on the impact of the proposed activity on Aboriginal cultural heritage.
Permitted if:
- carried out in accordance with an ACH permit issued by the Council, or an approved or authorised ACHMP (see below); and
- the activity is done so as to avoid or minimise risk of harm to Aboriginal cultural heritage.
Medium to high impact activity:
an activity that involves medium to high level ground disturbance. Examples include mechanised ground disturbance and broad acre land clearing in areas where there is no or minimal previous disturbance. Prior consultation with local ACH service (or if none, each native title party, knowledge holder or native title representative body) is required. Proponent must use best endeavours to reach agreement with the relevant Aboriginal party(s) on a proposed ACHMP.
Permitted if carried out in accordance with:
- a Council approved ACHMP, if agreement reached between the proponent and Aboriginal party(s) on the ACHMP; or
- Ministerial authorised ACHMP, if agreement is not reached between the proponent and the Aboriginal party(s) on the ACHMP.
If agreement is not reached, the Council may assist the parties to reach agreement on the ACHMP; but if this is unsuccessful:
- the Council may make recommendation to the Minister for Aboriginal Affairs whether or not to authorise an ACHMP; and
- the Minister decides whether or not to authorise the ACHMP.
If the Council makes a determination that the Aboriginal cultural heritage is of State significance, the ACHMP must be authorised by the Minister
Transitional provisions
Transitional provisions have been included in the Bill which provide for:
- the continuation of current consents under section 18 of the Current Act;
- a current consent under section 18 of the current Act to be taken as an approved ACHMP; and
- an approval under the Current Act to be taken as an ACH permit.
It is proposed that there will be a 12 month grace period before the Bill comes into force. If a section 18 consent is given during this 12 month period, it will only be valid for 5 years.
We have reviewed the draft Bill and can advise you on its implications to your business. Contact us to assist with identifying the impact to your business.