Aboriginal cultural heritage legislation

Western Australia's Aboriginal Heritage Act 1972

Aboriginal cultural heritage in WA has been protected by the Aboriginal Heritage Act 1972 (the AHA), administered most recently by the Department of Lands, Planning and Heritage (DPLH). While a progressive piece of legislation in the 1970s, the AHA has come under increasing criticism in recent years and is widely recognised as not meeting 21st century best practice standards of heritage legislation.  The destruction of Juukan Gorge by Rio Tinto in 2020 brought problems with the AHA into sharp focus, particularly the section 18 process for approving the destruction of Aboriginal Sites. This process was strongly criticised in A Way Forward, the final report of the Parliamentary Inquiry into the destruction of Juukan Gorge (Parliament of the Commonwealth of Australia, 2021). The committee concluded that the original good intentions of the legislation ultimately failed, and the law became in practice ‘a mechanism through which the disturbance, damage and destruction of both physical and intangible Aboriginal cultural heritage has repeatedly taken place’ (para 4.125). The committee attributed this to: 

• Amendments that undermined the original purpose.
• How legislation was interpreted and administered by successive Ministers.
• The prominence of section 18 as the basis for the system of damage by permit.
• The role of the Minister as arbiter for decisions about approval, to the exclusion of the voice and interests of traditional owners.

In summary, the ‘AHA has failed to strike a balance between the needs and aspirations of the various parties and has excessively favoured the interests of proponents’ (para 4.126).

Other problems with the AHA include the role of Aboriginal people in the protection of their heritage, including the absence of legislated representation on the ACMC, definitions of Aboriginal cultural heritage and the lack of integration with Native Title legislation. 

The committee encouraged the WA government to continue its consultation with regard to its draft Aboriginal Cultural Heritage Bill, recommending that it addressed the concerns already expressed in submissions by Aboriginal people and that it accommodates ‘the principles of free, prior and informed consent’, conducting consultation ‘in a way that accords with Aboriginal traditions of dialogue’ (para 4.135). The WA government passed the Aboriginal Cultural Heritage Act 2021 (ACH Act) in December 2021. The objectives of this legislation were:

• To recognise the importance of Aboriginal cultural heritage and Aboriginal custodianship. 
• To recognise, protect and preserve Aboriginal cultural heritage. 
• To manage activities that may harm Aboriginal cultural heritage. 
• To promote an appreciation of Aboriginal cultural heritage. 

Due to extensive backlash and criticism of the ACHA, the WA Government has now officially repealed the ACHA and instead introduced amendments to the AHA (an amended version), which was proclaimed on the 15 November 2023. The amendments to the AHA attempt to address the criticisms of the Section 18 process by: 

• Formal recognition of Native Title holders and rights of appeal in respect of s18 decisions by the Minister.
• Replacement of the ACMC with an Aboriginal Heritage Committee, based on the composition of the Aboriginal Heritage Council established under the ACHA, with male and female Aboriginal co-chairs, and preferably a majority of members of Aboriginal descent.
• Requirement to bring any new information with respect to a s18 approval.  

 Currently, DPLH have published the following documents following the revival of the AHA:

• Consultation Policy – outlining ‘the Government’s expectations of proponents to undertake consultation with Aboriginal people prior to submitting a section 18 notice’. https://www.wa.gov.au/government/document-collections/aboriginal-heritage-approvals#policy-and-guidelines.
• Aboriginal Heritage Act 1972 Guidelines – providing practical guidance for landowners where section 18 consent is required to impact Aboriginal cultural heritage (sites and objects). https://www.wa.gov.au/system/files/2023-11/aboriginal_heritage_act_1972_guidelines.pdf.

Under the AHA (s17) it remains an offence to alter an Aboriginal site in any way, including collecting artefacts; conceal a site or artefact; or excavate, destroy or damage in any way an Aboriginal site or artefact; without the authorisation of the Registrar of Aboriginal Sites under Section 16 or the Minister of Aboriginal Affairs under Section 18 of the AHA. 

An Aboriginal site is defined in Section 5 of the AHA as: 

a) Any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present.  

b) Any sacred, ritual or ceremonial site which is of importance and special significance to persons of Aboriginal descent.  

c) Any place which, in the opinion of the Committee [i.e. Aboriginal Cultural Material Committee, or ACMC], is or was associated with Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State.   

d)  Any place where objects to which the AHA applies are traditionally stored, or to which, under the provisions of the AHA, such objects have been taken or removed.

Section 39 (2) states that: 

        In evaluating the importance of places and objects the Committee [i.e. the ACMC] shall have regard to — 

• any existing use or significance attributed under relevant Aboriginal custom;
• any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;
• any potential anthropological, archaeological or ethnographical interest; and 
• aesthetic values.

Section 39 (3) stated that:  

• Associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place or object for the purposes of this Act.

The WA Government has introduced new fees associated with section 16 and section 18 applications. Commercial and Government proponents are expected to pay the following fees for new applications:

• A $250 application fee.
• $5,096 multiplied by the number of proposed investigation sites for section 16 applications and identified sites or places for section 18 applications. 
•  The Director General has the ability to waive, reduce or refund fees; and extend the time within which to pay fees. Any such matter will be considered on a case-by-case basis.

Additional protection and management

Aboriginal heritage sites are also protected under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the HPA). The HPA complements state/territory legislation and encourages heritage protection through mediated negotiation and agreement between land users, developers and Aboriginal people.

Aboriginal human remains are protected under the AHA and the HPA. In addition, the discovery of human remains requires that the following people are informed: the State Coroner or local Police under section 17 of the Coroners Act 1996; the State Registrar of Aboriginal Sites under section 15 of the AHA; and the Federal Minister for Aboriginal Affairs under Section 20 of the HPA.

In terms of broader recognition of Aboriginal rights, the Commonwealth Native Title Act (NTA) recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander people. Under the Native Title Act (NTA), native title claimants can make an application to the Federal Court to have their native title recognised by Australian law. The NTA was extensively amended in 1998, with further amendments occurring in 2007 and again in 2009. Under the future act provisions of the Native Title Act, native title holders and registered native title claimants are entitled to certain procedural rights, including a right to be notified of the proposed future act, or a right to object to the act, the opportunity to comment, the right to be consulted, the right to negotiate or the same rights as an ordinary title holder (freeholder).

Noongar Standard Heritage Agreement / Indigenous Land Use Agreement

The intention behind the Noongar Standard Heritage Agreement is the establishment of a proactive rather than reactive heritage management system across the southwest of Western Australia. It is called the Noongar Standard Heritage Agreement because it is a template agreement for each of the six Noongar Regional Corporations and its aim is for heritage matters in a region to be managed through the respective Noongar regional corporation. The Agreement sets out the procedures for the conduct of heritage surveys when a (government or non‐government) proponent is undertaking ground‐disturbing activities.