The State Government continues to progress changes to laws governing the protection and management of Aboriginal heritage, and following the announcement that the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 has passed through Parliament the subject of Heritage is again at the forefront of discussions across Western Australia.

The purpose of the Bill is to repeal the Aboriginal Cultural Heritage Act 2021 (ACHA Act) and regulations made under that Act; to amend the Aboriginal Heritage Act 1972; and to make consequential and related amendments to other written laws. Following presentation to the Legislative Assembly and the Legislative Council (both Houses), the Bill will now be progressed to the Governor who will assent to it in name. On assent, the Bill will become an act of parliament.

Critical amendments to the restored Aboriginal Heritage Act 1972 include:

• The newly formed Aboriginal Cultural Heritage Council will take on the role of the Committee established under the 1972 Act to make recommendations on Section 18 Notices to the Minister.
• Proponents and Native Title parties will have the same right of review for Section 18 decisions via the State Administrative Tribunal, with clear timeframes and an ability for the Premier to call-in a decision of ‘State significance’, to act in the interests of all Western Australians.
• When a Section 18 has been approved, a requirement for the owner to notify the Minister of any new information about an Aboriginal site.
• While the community and industry alike are waiting for further details on what the repeal of the ACHA Act will mean from a technical application perspective, we know that the constant will be an ongoing commitment to developing a positive and respectful relationship with the relevant Aboriginal groups, knowledge holders and Native Title Parties on decisions that may impact their cultural heritage.

What Should I do Now?

• Seek to be informed as to where Aboriginal cultural heritages sites may be located, and their importance to Aboriginal people, in a culturally appropriate way recognising Aboriginal people are not required to disclose culturally-sensitive information.
• If you have a known Aboriginal Cultural Heritage site within your lot, we recommend the preparation of a Due Diligence Assessment to understand if there is a Section 18 in place or not and determine the next steps that are required prior to commencing works on site. Preparation of a due diligence assessment is not mandatory under the 1972 Act, though it is considered best practice.
• If your development is likely to impact upon an Aboriginal Cultural Heritage site, the Section 18 process has historically been lengthy (potentially 6-12 months or more). This is longer than the timeframes that were in place under the ACH Act 2021.

If you are concerned that your development or proposed works may impact an Aboriginal Cultural Heritage site or are unsure if you have an existing Section 18 in place or not, element is here to assist you. We are here to work with you to ensure Aboriginal groups, knowledge holders and Native Title Parties are informed at the earliest possible stages of proposed activities and their potential impact to ACH. Please do not hesitate to contact us: we will be happy to assist you.

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