Aboriginal Cultural Heritage Laws

There has been much discussion surrounding WA’s new Aboriginal Cultural Heritage Act 2021 (WA) (Act) which came into effect on 1 July 2023. Confusion and uncertainty arising from the new Act – meant to “clean up” previous heritage laws from the 1970’s – has resulted in calls for over-arching reform at a federal level to override the Act. In the meantime, the new Act subsists.

A cause for concern? Perhaps not

Landowners must remember that for more than 50 years it has been illegal to undertake activities that may harm Aboriginal cultural heritage, without approval. Critically, where there is NO Aboriginal cultural heritage present, there is NO requirement for approval. Further, substantial exemptions exist, including for activities on properties less than 1100sq metres. Even for low level activities (with no or minimal ground disturbance) if harm can be minimised, approvals are not required. And for farmers, “like-for-like activities” (such as building fences or planting crops on existing farms) are also exempt.

The new system

The new Act is meant to provide a legal framework to modernise Native Title laws through the introduction of a permit-based system that categorises activities, introduces practical exemptions and sets tiered approvals that align with the level of disturbance and risk of harm to Aboriginal cultural heritage.

When approval is required

There is only a need for approval where Aboriginal cultural heritage is present in the area, and it is not possible to avoid impact or harm. If present, your activity may require a permit, or may require consultation or an agreement with the local Aboriginal people.  A free “ACHIS” search is available via the Department of Planning, Lands & Heritage.

What type of approval do I need

The type of approval needed is based on the level of your activity, the scale of disturbance and the potential to impact Aboriginal cultural heritage. A tiered system is in place to help identify what you need to do and what type of approval may be required. Some activities are exempt.

· Exempt – activities do not require approval

· Tier 1 – activities do not require approval

· Tier 2 – activities require a permit

· Tier 3 – activities require a management plan

Exempt – minor activity (no approval)

A range of activities undertaken by landowners, farmers, the community and industry are exempt from requiring approval under the Act. Some exemptions include:

· Residential development on land less than 1100sqm.

· Installing and maintaining residential water, gas, electricity and other services.

· Installing a patio, pergola, verandah, deck, pool or deck on residential properties.

· Undertaking “like-for-like" activities eg: farmers working on established paddocks.

· Maintaining existing firebreaks or additional firebreaks in the event of an emergency.

· Ploughing, running livestock, replacing a fence or seeding an existing paddock.

· Recreational activities on public waters and in public places.

· All activities, including existing mining activities, approved under the prior act.

Tier 1 – low amount of activity (no approval)

Where there is no or only a minimal level of ground disturbance but where there is a risk of harm to Aboriginal cultural heritage, the activity may proceed subject to a requirement to undertake all reasonable steps possible to avoid or minimise harm to Aboriginal cultural heritage. Tier 1 activity would include installing a fence in a way that does not involve clearing is a Tier 1 activity and does not need approval.

Tier 2 – medium activity (permit required)

For activities involving low-level ground disturbance, the Act establishes a permit system based around due diligence and application to the Aboriginal Cultural Heritage Council. Tier 2 activities include erecting or installing a stock watering point or a yard, amalgamating lots or constructing villa style housing. A nominal $100 administrative fee applies for a permit.

Tier 3 – high level of activity (management plan required)

Activities that involve moderate to high level ground disturbance will require an Aboriginal Cultural Heritage Management Plan to be negotiated with the relevant Aboriginal parties. Tier 3 activities include digging a new mine site, deep excavation or land clearing, subdivisions or major construction projects. A scalable system of fixed and variable application fees applies for moderate to high ground disturbing activities.

Due Diligence Assessment

Before commencing any application, a Due Diligence Assessment is required in order to assess the risk of harm to Aboriginal cultural heritage. This will enable a proponent to determine how to proceed in relation to an activity. The Assessment will reveal if the activity is in a “Protected Area”, whether the activity should be carried out in an alternative location or using an alternative method, and what sorts of authorisations may be required.

Do you have questions?

· Is Aboriginal Cultural Heritage present on my land?

· How do I undertake Due Diligence?

· Does my activity require approval?

· How do I determine whether my activity is exempt?

· How long does it take to obtain a permit?

· What are the fees for a permit or management plan?