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9 Sep 2020

HHG Legal Group’s Director, Murray Thornhill and Lawyer, Fintan Roberts provide a weekly snapshot of new and upcoming legislation.

20200423 WA Legislation Weekly

HHG Legal Group’s legislation updates aim to provide information on new and upcoming legislation (and/or bills) as they pass, primarily focused on legislation arising as a counter-measure to COVID-19.

Aboriginal Cultural Heritage Bill 2020

Welcome to another edition of our legislation update – this time primarily covering the Aboriginal Cultural Heritage Bill 2020 which was released for public consultation on 2 September 2020. This Bill seeks to replace the now outdated Aboriginal Heritage Act 1972, following extensive consultation over the last two years with key stakeholders, industry professionals and Aboriginal people in Western Australia.

Practically speaking, the Bill aims to recognise the importance of Aboriginal cultural heritage to Aboriginal people. The Bill strives to protect and preserve Aboriginal cultural heritage by, for example:

  • Section 10(1): implementing a comprehensive, overarching definition of what Aboriginal cultural heritage is and what that term will encompass. This includes the tangible and intangible elements that are important to the Aboriginal people of the State, recognised through social, spiritual, historical, scientific or aesthetic perspectives;
  • Part 8 Bill: creating a clear framework for the management of activities that may harm Aboriginal cultural heritage, such as requirements for due diligence assessments about potential harm to Aboriginal cultural heritage by proposed activities (ss 93 – 96) and for notification to and consultation with Aboriginal parties and persons regarding proposed activities (ss 97 – 99); and
  • Part 4 Bill: Establishing the Aboriginal Cultural Heritage Council to, among other functions, promote public awareness about Aboriginal Cultural Heritage, grant ‘ACH permits’ where appropriate and to issue recommendations to the Minister regarding the establishment of protected areas.

The Government has placed additional emphasis on the proposed removal of section 18 of the current Act. Section 18 outlines the process for landholders seeking to develop their land – which involves submitting their proposals to the Minister, who will independently determine if there is an Aboriginal Cultural Heritage site on the land that should be protected.

Under this process, there is little to no ability for Aboriginal people to be involved with how the land is to be protected. Under the new Bill, there would be a requirement (as above) for consultation to be carried out between local Aboriginal Cultural Heritage Council services (or native title party or representatives) and those seeking to perform ‘medium to high impact activity’ that may disrupt cultural heritage sites.

Other notable proposed changes include:

  • Section 176: Empowerment for the Minister to issue ‘stop activity’ orders (requiring a person to stop activity that is harming or otherwise involves imminent risk of harm to Aboriginal cultural heritage). Failure to comply is met with severe penalties (section 178)
  • Section 179: Enables the Council to make a recommendation to the Minister that a prohibition order be made when appropriate after a stop activity order is made. Section 181 enables the Minister to make the recommendation.
  • Section 186 and 187: Enables the Council to recommend a remediation order be given and empowers the Minister to make that order.
  • More severe penalties contained within Part 7 of the Bill for damaging cultural heritage sites, penalties which include –
    • For ‘serious harm’ offences to Aboriginal cultural heritage (section 83):  up to 5 years imprisonment and/or a fine of $1,000,000 for individuals and a fine of up to $10,000,000 for body corporates. For each day or part of a day that any offence continues, individual offenders will be fined an additional $50,000 and body corporate offenders an additional $500,000.
    • ‘Material harm’ offences (section 85): initial fines of $100,000 for individuals and $1,000,000 for body corporates (with continuing daily fines).
    • Offences for ‘harm’ to Aboriginal cultural heritage (section 86): initial fines of $25,000 for individuals and $250,000 for body corporates (with continuing daily fines)
  • Part 13: Improved transparency – Minister decisions covered under s258(6) will be reviewable by all affected parties and reasons will need to be published.

The Government has indicated that the Bill is expected to be introduced into parliament before the end of 2020.

Feedback on the Bill can be provided by email or post, or online at the following link (where a copy of the Bill can also be accessed):
https://consultation.dplh.wa.gov.au/aboriginal-heritage/aboriginal-heritage-bill-2020/

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