Modernising WA’s approach to Aboriginal cultural heritage

On 2 September 2020, the Western Australian Government released a consultation draft of the Aboriginal Cultural Heritage Bill (Bill). The Bill will repeal the existing Aboriginal Heritage Act 1972 (WA) (AHA), and replace it with a new regime embodying a more modern approach to the protection of Aboriginal cultural heritage.  

This legislative reform is widely agreed as being long overdue however, arguably, there are few areas of law and public policy that are more challenging to achieve broad consensus in than protecting Aboriginal cultural heritage in a resource development state like Western Australia.[1]

The Bill was open for public consultation for a period of five weeks from 2 September 2020.

Some 158 published submissions are available on the website of the Department of Planning, Lands and Heritage and were made by individuals, government departments, Aboriginal corporations and native title bodies, exploration and mining companies and environmental bodies.  

While the submissions generally welcome the reform of this outdated law, stakeholders had much to say about how the Bill could be improved – some calling for far more stringent protection for Aboriginal heritage and others saying the current Bill is too onerous or lacks sufficient detail to even make an assessment of its true impact. 

The Bill was expected to be tabled before parliament by the end of 2020, which is an ambitious goal. Many stakeholders believe the consultation period was too short and did not allow both Traditional Owners and Industry to consider and provide meaningful feedback.  

There are a limited number of sitting weeks left of 2020 and only a few weeks will remain following the holiday period before the Government enters caretaker mode in advance of the upcoming state election.

The Bill

The Bill is about valuing and protecting Aboriginal cultural heritage and managing activities that may harm that heritage. The Bill aims to recognise the fundamental importance of Aboriginal cultural heritage. 

However, the Bill also recognises that there may be activities which benefit the community that have the potential to harm Aboriginal cultural heritage and that outcomes must be balanced and beneficial for both Aboriginal people and the wider Western Australian community. 

There are a number of key changes from the AHA. 

Wider definition of Aboriginal cultural heritage 

The Bill will insert a broad definition of ‘Aboriginal cultural heritage’ to include “tangible and intangible elements that are important to the Aboriginal people of the State, recognised through social, spiritual, historical, scientific or aesthetic perspectives (including contemporary perspectives)...”  This enlarges the current focus on physical places and objects in the AHA.  

Recognition of the strong spiritual perspective in Aboriginal culture, particularly given the oral history and story-telling traditions, is likely to effectively protect a broader range of values, similar to the notions of ‘interference’ with community and social activities and areas or sites of particular significance embedded in the Native Title Act 1992 (Cth).  

Industry and Aboriginal groups appear broadly content that the new definition includes ‘intangible elements’. However, there is some concern amongst industry groups that the broader definition is ambulatory and may result in confusion and uncertainty. In particular, use of the words ‘aesthetic’ and ‘contemporary’ have been said to broaden the definition of Aboriginal cultural heritage too far and have the potential to expand the Bill beyond its purpose. 

It is also interesting to note that the offence provisions of the Bill (discussed below) do not apply to Aboriginal cultural heritage, as defined, but only to part of the definition. In particular, the offence provisions do not apply to a cultural landscape, or part of a cultural landscape, unless it is a protected area or within a protected area. 

Establishment of Aboriginal Cultural Heritage Directory and ACH Council

The Aboriginal Cultural Heritage Directory established by the Bill is intended to be a central source of information about Aboriginal cultural heritage, with research and planning tools. The Directory is to be maintained by the Aboriginal Cultural Heritage Council (Council). The general public will have limited access to the Directory however, particularly in relation to culturally sensitive information.

The Council will replace the Aboriginal Cultural Material Committee under the AHA.  The Council’s functions include promoting public awareness, understanding and appreciation of Aboriginal cultural heritage, promoting the role of Aboriginal people in the recognition, protection and preservation of Aboriginal cultural heritage, the management of activities that may harm Aboriginal cultural heritage, administration of the Act and providing advice to the Minister. 

The Council will oversee the approval of Aboriginal Cultural Heritage Management Plans (ACH Management Plans) (discussed below) and provide recommendations to the Minister in relation to the protection of areas of outstanding significance. The Bill sets up a multi-tiered approval process for having an area declared a protected area.

Feedback from stakeholders reflected concern that the Council guidelines are to be issued by the Council once formed. These guidelines will be fundamental in that they will set out the factors to be considered in deciding whether, for the purposes of the Bill, Aboriginal cultural heritage is of State significance. Industry says that an understanding of details of this nature is required before it is possible to form a considered view on how the regime will operate.   

Introduction of an ACH Management Plan 

Land users and project proponents will be authorised under the terms of the Bill to carry out an activity that may harm Aboriginal cultural heritage but only if the activity meets specific criteria. An ACH Management Plan will be required before a proponent carries out medium or high impact activity and may also be required in respect of a low impact activity.  

The contents of an ACH Management Plan include an impact statement, the methods by which the proposed activity is to be managed to avoid or minimise the risk of harm being caused to Aboriginal cultural heritage and the extent to which harm is authorised to be caused. The Bill makes clear however, that an ACH Management Plan is not required to set out the details of the commercial arrangements between the proponent and an Aboriginal party.

Concern has also been expressed, in feedback on the Bill, about the lack of detail surrounding new requirements with respect to ACH Management Plans. For example, consultation on an ACH Management Plan must be carried out in accordance with the ‘consultation guidelines’, which are yet to be released for public review and comment.  

The Bill also requires that a due diligence assessment must be undertaken by a proponent intending to carry out an activity but provides that the assessment is to be undertaken in accordance with the ‘ACH Management Code’, which is also yet to be released.  

Similarly, parties are keen to understand where it is likely common activities undertaken by the resources industry will fall within the proposed tiered approval system (for low, medium and high impact activities). The Bill provides that the regulations may make provision for or in relation to protected areas including activities, or classes of activities that may be carried out in a protected area. In short, concerned parties are calling for all guidelines or guidance materials related to the Bill to be released prior to the Bill being tabled in Parliament so that there is further certainty about how the new regime will actually operate. 

The removal of section 18 of the AHA

For some time now, section 18 of the AHA has been criticised for failing to provide Aboriginal people with a voice in the approvals process for certain activities to be carried out on an Aboriginal site. The Bill removes section 18 of the AHA and introduces a regime aimed at facilitating agreements between Aboriginal people and organisations through the establishment of the Council. The Council is also to appoint local Aboriginal cultural heritage services for different areas of the State.  

The creation of local Aboriginal cultural heritage services for different areas of the State is intended to give Aboriginal people a greater decision-making role early in the process. However, there is concern from Aboriginal groups about how the local Aboriginal cultural heritage services will be funded and supported to discharge their functions. Further, Industry is calling for the local Aboriginal cultural heritage services to be subject to statutory performance standards so that there is more certainty about how proponents can discuss and negotiate issues. The Bill also provides limited detail about the nature of the fees to be charged by local Aboriginal cultural heritage services.  

Reporting of cultural heritage

The Bill provides that any person who knows, or becomes aware, of an Aboriginal place, object or ancestral remains must report that discovery to the Council as soon as practicable after making the discovery. Failure to do so will result in a fine of $20,000 for individuals and $100,000 for bodies corporate.  

The only defence to the reporting requirements is if the person can prove that they did not know, and could not reasonably to have known, that the discovery was an Aboriginal place, object or Aboriginal ancestral remains.  

Offences and penalties

The Bill introduces three new offences for causing harm to Aboriginal cultural heritage:

1. a strict liability criminal offence of causing ‘serious harm’ which carries a maximum penalty of $10,000,000 for a body corporate, and a fine of $1,000,000 or imprisonment of five years for an individual, or both;
   
   
2. an offence of causing ‘material harm’. This offence carries penalties of $100,000 for individuals and $1,000,000 for bodies corporate; and
   
   
3. an offence of causing ‘harm to aboriginal cultural heritage’ which imposes a fine of $25,000 for an individual and $250,000 for a body corporate.  

While supporting the concept of serious repercussions for serious actions, Industry groups are understandably concerned with the nature of the penalties detailed in the Bill.  In particular, some parties believe that the new provisions do not reflect the realities in Western Australia where there is no history of widespread unlawful interference with Aboriginal cultural heritage. 

Notably, while Aboriginal groups have welcomed the harsher penalties, they have also acknowledged that a more fearsome penalty regime is no substitute for providing better mechanisms of protection.  

Defences

The defences available to an offence creating provision are quite limited. The primary defence is if a person is able to show that the harm caused to Aboriginal cultural heritage was authorised. To enliven this defence, a party must be able to demonstrate that the activity is an exempt activity, and the area in which the activity is carried out is not a protected area.

Other defences may arise if a person is able to prove that the act that harmed Aboriginal cultural heritage was carried out:

• by a person in accordance with other orders or prescribed activities under the Bill;
  
  
• by a person in accordance with other legislation; or
  
  
• after the person had undertaken a due diligence assessment that did not identify the relevant heritage that was harmed and had taken all reasonable steps to ensure that the activity was managed so as to avoid or minimise the risk of harm.

Extended liability

The Bill provides that an employer is vicariously liable for any offence committed by its employees. However, an employer may establish that it took all reasonable steps to prevent the commission of the offence by the employee.  

An officer of a body corporate may also be charged with harming Aboriginal cultural heritage on the basis of conduct by that body corporate if that officer failed to take reasonable steps to prevent the commission of the offence.  

Industry stakeholders were generally critical of how the Bill sets up employer liability for employee offences in circumstances where the employee acted without the employer’s authority or contrary to the employer’s orders or instructions. In particular, where an employee has committed an act without the employer’s authority or disregarded an employer’s order, an employer still needs to prove that it took all reasonable steps to prevent the commission of the offence by the employee in defence of the charge.  

Further, determining whether things done or omitted to be done by an employer constituted reasonable steps requires consideration of what the employer knew, or ought to have known about the contravention and whether the employer could, by the exercise of due diligence, have prevented the contravention and “any other relevant matter”.   

The Bill also increases the limitation period for the prosecution of offences brought under the Act from 12 months to six years. 

Transitional provisions

The Bill provides for transitional arrangements, including that the Minister will have discretion to declare that any valid section 18 consent under the AHA is no longer in force. The Bill does not provide any guidance as to why or when the Minister might make such a declaration, and provides that section 18 consents granted after the Bill commences will have a limited duration of up to five years.

Given the broad-scale shift in processes under the Bill, Industry is calling on an extended transitional period to allow organisations to accommodate new requirements and re-negotiate existing heritage agreements. 

Conclusion

While reform of the AHA is significantly overdue, and the concepts underpinning the Bill have been broadly welcomed, the Bill itself has received a lukewarm reception and a chorus of concerns about various aspects, not least of all the amount of detail around critical processes which is yet to be fleshed out. 

The limited number of sittings left of Parliament before the end of 2020 and the state election in March 2021 mean that there must be real doubts as to whether the Bill will become law in the near future.   

Regardless of when the Bill reaches Parliament, the definition of Aboriginal cultural heritage, given its great departure from the definition in the AHA, and the offence provisions, are issues of real concern for Industry, as is the lack of detail around how many aspects of the new regime will operate.  

The current Bill has been years in the making but remains a source of concern for key stakeholders. In light of those concerns, and the time constraints for its introduction into Parliament, we wonder whether legislative drafters will go back to the drawing board to attempt to flesh out some of the details which appear to concern Industry groups and Traditional Owners alike.