WA Releases Discussion Paper for Changes To The Aboriginal Heritage Act 1972

Tuesday 12 March 2019 @ 12.04 p.m. | Legal Research

On 7 March 2019, Benjamin Wyatt, the WA Minister of Aboriginal Affairs released a discussion paper to review the Aboriginal Heritage Act 1972 (WA) (‘the Act’), which has remained largely unchanged for nearly 50 years. The discussion paper proposes amendments to the current Act and recommends a new framework for efficient land use by industry and other land users.

The discussion paper is the second of a three phase consultation process to review the Act. An initial consultation paper was first released in March 2018 and requested feedback from Western Australia residents on how the Act should be improved. Feedback on the consultation paper closed on 1 June 2018 and informed the proposals currently set out in the discussion paper. The final phase of the consultation will be the release of a draft bill.

The Minister said in the Media Release:

“[The discussion paper] proposes changes to the legislation that preserves and protects Aboriginal heritage places to make it more equitable to Aboriginal people, and more efficient for industry and other land users that require access to land for economic activity.”

Discussion Paper Proposals

One of the main amendments proposed is the establishment of local Aboriginal heritage services and an Aboriginal Heritage Council. Under the current Act, there is no framework to allow Aboriginal people to have a direct role in the decision making process, nor is there any requirement that they are consulted or involved. The desired outcome of this proposal would be to more actively engage with traditional owners and knowledge holders in the decision making process and management of heritage sites, and in doing so provide the Aboriginal people with a right to speak for the land that they have a connection to and cultural responsibility for.

The discussion paper also proposes a more streamlined and tiered approvals mechanism for land use projects that avoid or minimise impact on Aboriginal heritage sites. In cases where there would be a significant impact, the decision making process is also required to be more transparent in order to better balance the benefits of Aboriginal culture protection and economic development. The discussion paper, therefore, proposes that reasons for all decisions that affect heritage sites must be published.

The discussion paper also poses the question of how heritage should be defined, in order to better reflect Aboriginal culture. Some of the issues to be addressed include how ancestral remains are to be cared for, and how intellectual property in art, stories, songs and medicines are to be protected in order to prevent cultural exploitation of the Aboriginal heritage. The proposal also suggests that the legislation be amended to be more in line with the Australia ICOMOS (International Council on Monuments and Sites) Charter for Places of Cultural Significance, the Burra Charter, 2013.

Some other key proposals of the discussion paper listed in the discussion paper:

“Provide new tools for the Minister to intervene quickly where Aboriginal heritage is at imminent risk of loss from unauthorised land use activities. (Proposal 3(C))

Introduce a referral system to facilitate riskbased decision making and tiered assessments of land use proposals that take into account Aboriginal heritage and the impact of previous land uses. (Proposal 5)

Bring the penalties for a breach of the Act into line with other heritage legislation (Heritage Act 2018). (Proposal 8)

Improve enforcement by allowing sufficient time for breaches to be thoroughly investigated and prosecuted. (Proposal 8)

Retain Protected Areas and provide new mechanisms to enable Aboriginal people to care for them. (Proposal 9)”

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