In early August, the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (Repeal Bill) was introduced to the Western Australia Legislative Assembly to repeal the controversial Aboriginal Cultural Heritage Act 2021 (ACH Act) and associated regulations.
After several months of legal uncertainty, Part 2 of the Repeal Bill, which affects the repeal of the ACH Act, came into effect on Wednesday, 15 November, 2023 and resulted in the reintroduction of a revised version of the Aboriginal Heritage Act 1972 (AH Act), bringing much needed clarity to all parties involved in land use.
What you need to know
From 15 November 2023 onwards, Western Australia will revert to operating under the old AH Act, as amended by the Repeal Bill.
Authorisations to impact Aboriginal sites will revert to the less complicated section 18 consent process (with some changes noted below), departing from the activity-matrix based Aboriginal Cultural Heritage Permits (ACH Permits) and Aboriginal Cultural Heritage Management Plans (ACHMPs) system under the ACH Act. Existing ACH Permits and ACHMPs will automatically transition to section 18 consents.
The scope of protected Aboriginal heritage will revert from the broader formulation under the ACH Act to the well understood definitions of Aboriginal sites and Aboriginal objects under the AH Act. It is important to note that what constitutes an Aboriginal site will still extend to places of importance and significance to Aboriginal people, or places associated with Aboriginal people, regardless of whether a particular site is a registered site (and visible on DPLH's heritage inquiry system ACHIS) or not.
Key takeaways - The revised section 18 consent process and more
The bolstered AH Act will introduce several new changes, which include:
Aboriginal Heritage Survey Assistance Program – rebates for heritage surveys
In addition to the Repeal Bill, the State Government recently announced an Aboriginal Heritage Survey Assistance Program which will provide assistance to the mining industry to partially offset the increasing costs of conducting Aboriginal Heritage Surveys. The holder (or their designated tenement consultant) of a prospecting licence or exploration licence may apply for a rebate of a portion of the tenement rent to cover heritage survey costs incurred on the tenement.
To discuss how the transition back to the AH Act may affect you, please contact our Energy and Resources team.
Brianna Wallace | Lawyer
Charlie Mitchell | Law Graduate