The ACHA 2021

The 1972 Act was in place to govern the protection and management of Aboriginal heritage in Western Australia.

The ACHA 2021 was introduced as a response by the WA Government to the destruction of a rock shelter at Juukan Gorge in the Pilbara region by a mining operator in May 2020. It was a sacred site for the local Indigenous community and of archaeological significance.

The WA Government sought to update and upgrade the protections for Aboriginal cultural heritage then available under the 1972 Act. The ACHA 2021 came into force on 1 July 2023, with the 1972 Act set to be phased out.

Comments in the media from some land owners and industry stakeholders was that the ACHA 2021 was complicated and placed unnecessary burdens on land owners. In August 2023 the WA Government announced its intention to repeal the ACHA 2021 and restore the 1972 Act, but with appropriate amendments to prevent another Juukan Gorge incident. 

On 15 November 2023 the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (Repeal Act) repealed the ACHA 2021, the Aboriginal Cultural Heritage Regulations 2022, and the Aboriginal Cultural Heritage (Cost Recovery) Regulations 2023, and reinstated an amended version of the 1972 Act.

Transition provisions

Specified processes and authorities established under the ACHA 2021 transition to the new regime under the 1972 Act largely through the Aboriginal Heritage (Transitional Provisions) Regulations 2023 (WA), including:

• The newly formed Aboriginal Cultural Heritage (ACH) Council will take on the role as the ACH Committee established under the 1972 Act to make recommendations to the Minister
• The Aboriginal Cultural Heritage Directory established and maintained by the ACH Council is to transition to a register under the 1972 Act
• ACH permits and ACH management plans issued under the ACHA 2021 are to transition into section 18 consents. Any application for ACH permits or ACH management plans will also transition to section 18 applications
• The regulations contain defences for certain activities which were substantially commenced under the ACHA 2021, provided the due diligence and other requirements under the ACHA 2021 were met, and the activities were undertaken within 1 year of the repeal date (15 November 2023).

Section 18 consents

On commencement of the Repeal Act the section 18 consent process by the owner of any land in the 1972 Act was reinstated. For the purposes of section 18 “owner of any land” is widely defined to include (amongst other things) a lessee from the Crown, and the holder of any mining tenement or mining privilege or of any right or privilege under the Petroleum and Geothermal Energy Resources Act 1967.

Section 17 of the 1972 Act provides that the destruction, damage or alteration to an Aboriginal site is an offence under that Act unless the person was acting with the authorisation of the Registrar under section 16 or under a consent for the proposed activity given under section 18.

When the owner of land gives the ACH Committee notice of a section 18 application for consent for the proposed activity, the ACH Committee must form an opinion as to whether there is any Aboriginal site on the land, and evaluate the importance and significance of the site, and provide the Minister with its recommendation as to whether or not the Minister should consent to the proposed land activity and any conditions that could be imposed. Consent is granted by the Minister.

There are consequential amendments to section 18 of the amended 1972 Act, including:

• Native Title parties will have the same right of review in the State Administrative Tribunal (SAT) as the proponent. Previously only the owner of any land could seek a review of a section 18 consent refusal or on the conditions imposed on the consent
• A legal agreement between an owner of land and a Native Title party may not restrain or prohibit the Native Title party from seeking a review of a section 18 decision in the SAT, or otherwise making a submission in relation to a section 18 application
• Where a section 18 consent has been granted by the Minister, the owner of the land has an ongoing obligation to notify the Minister of any “new information” about an Aboriginal site on the land the subject of the consent
• The Minister, upon becoming aware of new information and “having regard to the general interest of the Community” may confirm, amend, revoke, or revoke and give a new consent. The Minister may suspend the consent in whole or in part while making this decision
• Section 18 consents may be able to be transferred where there is a change in ownership of land. This is subject to the approval of the Minister
• The WA Premier may intervene in the section 18 decision making process. If the Premier considers an application before the SAT raises issues of State or regional importance, the Premier may direct the President of the SAT to refer the application to the Premier for determination, or direct the SAT to hear the application and then, without determining it, refer it with recommendations to the Premier for determination
• Section 18 consent decisions will be publicly available on the Department of Planning, Lands and Heritage website.

Greater certainty for WA

It is expected that the repeal of the ACHA 2021 and restoration of the amended 1972 Act may lead to a more stable and predictable regime for the protection of Aboriginal sites and the process of compliance and consent for land use, and prevent another Juukan Gorge incident.