On the 1 July 2023, the new Aboriginal Cultural Heritage Act 2021 (WA) came into force. The new Act makes extensive amendments to the existing Aboriginal Heritage Act 1972, including the introduction of the four-tier activity approval process, the due diligence assessment (DDA), and the Local Aboriginal Cultural Heritage Services (LACHS). Under the new legislation greater onus is placed on landowners and proponents in WA to undertake a DDA to identify Aboriginal Cultural Heritage (ACH) and to avoid and minimise any harm to ACH. Below is a summary of the key changes landowners and proponents should be aware of.
What is Aboriginal Cultural Heritage?
Aboriginal Cultural Heritage (ACH) means the tangible and intangible elements that are important to the Aboriginal people of the State. ACH includes an Aboriginal Place, an Aboriginal object, a cultural landscape and Aboriginal ancestral remains.
Waterways
Aboriginal Cultural Heritage may be present on, in or surrounding the waterways on your property. If a landowner or proponent intends to undertake ground disturbing activities that impact a waterway, then they will be required to undertake a due diligence assessment. For the purposes of the Act, Regulations and Guidelines, a waterway includes the following:
(a) a river, creek, brook or other naturally flowing stream of water, whether or not it flows permanently;
(b) a lake, salt lake, claypan, lagoon, marsh or swamp;
(c) a floodplain, estuary or inlet;
(d) an artificial waterway as defined in the Planning and Development Act 2005 section 4(1).
Activity Tiers
Under the Act, a four-tier approval process has been introduced for activities that may cause harm to ACH. The four-tier approval process is applicable to landowners and proponents, who are intending to carry out ground disturbing activities that may harm ACH. The four activities include exempt, tier 1, tier 2 and tier 3 activities.
Due Diligence Assessment
The landowners of exempt, tier 1, tier 2 and tier 3 activities will all be required to undertake a search of the ACH Directory to determine if there is ACH or a Protected Area registered on their land. Landowners and proponents wishing to undertake tier one, two or three activities will then be required to undertake a due diligence assessment to determine if their activities will cause a risk of harm to ACH.
ACH Directory
The Directory is a tool that will assist landowners and proponents with undertaking a DDA. The Directory contains prescribed information about ACH that is located throughout the State. This includes information about ACH previously recorded on the Register of Aboriginal Sites throughout the administration of the Aboriginal Heritage Act 1972, as well as records of new ACH as they are submitted.
LACHS
LACHS have been introduced under the new legislation to assist landowners and proponents during a DDA. A person or entity with comprehensive knowledge of the local Aboriginal community in an area, of the State, such as a native title representative body, can apply to be designated as the LACHS for that area. Once appointed a LACHS is responsible for providing advice to landowners and proponents about ACH, engaging with proponents and other local knowledge holders and facilitating and making ACH management plans, amongst other things. A proponent intending to carry out a Tier 2 or Tier 3 activity that is the subject of a Plan will be required to consult with the LACHS for their area.
Permits
If a tier 2 activity cannot be carried out so as to avoid harm to ACH, then the proponent must make an application to the ACH Council to obtain a Permit. Similarly, if a tier 3 activity cannot be carried out so as to avoid harm to ACH then the proponent will be required to develop an ACH Management Plan with each interested Aboriginal party.
Stop Activity and Prohibition Orders
If a landowner or proponent is carrying out an approved tier 2 or tier 3 activity and ACH is being harmed or there is an imminent risk of harm being caused to ACH then the Minister for Aboriginal Affairs, may give a stop activity order to a person to stop the activity. The Minister also has the power, upon the recommendation of the ACH Council, to give a prohibition order to a person carrying out a tier 2 or tier 3 activity, if harm or imminent risk of harm to ACH is caused by their activity. If ACH has been harmed the Minister may, upon the recommendation of the ACH Council, issue a remediation order.
If you would like more information about the Act or Aboriginal cultural heritage in general, please contact Bailiwick Legal on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.
Written by Matilda Lloyd (Solicitor)
For further information about Bailiwick Legal, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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