Aboriginal cultural heritage legislation

In Western Australia, the main legislative framework for Aboriginal heritage is Western Australia’s Aboriginal Heritage Act 1972 (the AHA). Important and significant Aboriginal sites and objects are protected under it. The Aboriginal Heritage Inquiry System (AHIS), managed by the state’s Department of Planning Lands and Heritage (DPLH), is the tool through which the public can access information about Aboriginal heritage places and their legal status. There are two broad categories in the in which the AHIS organises heritage places: Aboriginal Sites (Registered Sites) or Other Heritage Places.

Western Australia’s Aboriginal Heritage Act 1972

Western Australia’s Aboriginal Heritage Act 1972 (the AHA) protects sites and objects that are significant to living Aboriginal people as well as Aboriginal sites of historical, anthropological, archaeological and ethnographic significance. The AHA is currently administered by DPLH.

The primary sections of the AHA that need to be considered are section 5 which defines the term ‘Aboriginal Site’, and section 39(2) which details what the Aboriginal Cultural Materials Committee (ACMC) should have in regards to considering the importance of objects and places. Section 17 of the AHA states that it is 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.

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.