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Western Australian outback. Aboriginal heritage legislation

Proposals for new Aboriginal Heritage legislation in Western Australia: implications for industry

Authors: Michael Boyce, Sally Scott

A Discussion Paper for the new Aboriginal Heritage legislation was released earlier this month by the WA Minister for Aboriginal Affairs (Minister). The Discussion Paper proposes the replacement of the current Aboriginal Heritage Act 1972 (WA) (Current Act) with “modern” heritage legislation, providing for a new land use proposal and approvals framework. If implemented as proposed, the new legislation will have significant implications for how mining and resource industry land users manage Aboriginal Heritage risk.

The Discussion Paper sets out nine detailed proposals for reforming the Aboriginal Heritage system in Western Australia. It is the second phase of the Minister’s review of the Current Act, that was commenced in response to widespread frustration, from both Aboriginal people and industry stakeholders, that the legislation (which is now close to 50 years old) is no longer fit for purpose.

Below we look at some of the issues identified by land users regarding the Current Act and discuss how the Discussion Paper’s proposals respond to these issues.

There is a currently a lack of certainty and transparency about what and where “heritage” is.

The Current Act focuses heavily on whether “heritage” objects or places meet certain criteria, and compliance essentially requires avoidance of such sites. By contrast, the new system will require proponents to have land use proposals approved through a statutory process which assesses the activity’s impact on heritage more generally.

Land use proposals will be assessed and approved through a “tiered assessment process” meaning different processes will apply depending on the proposal’s impact on heritage. Low impact proposals will be subject to what is intended to be a more streamlined approval process, while high impact proposals will still require Ministerial approval.

Surveys will not be required in all cases and, in assessing impact on heritage, land use proponents will be able to consult the (improved) Aboriginal Heritage Register, new “Local Aboriginal Heritage Services” (more on these below) and/or the Department of Planning, Lands and Heritage (Department) to assess whether there is Aboriginal heritage in the relevant area.

Comment: It will still be necessary for “heritage” to be defined and identified as part of the new approval process, to be able to assess the impact of proposed activities. It therefore remains to be seen whether the difficulties associated with defining the concept of “heritage”, and where “heritage” is, will be a source of more or less uncertainty for land users under the new system.

Under the Current Act the Register of Places and Objects is non-exhaustive, in that both registered and non-registered places and objects are protected.

The new system carries forward the concept of protection of all Aboriginal heritage, whether registered or not.

However, several reforms are proposed which are intended to improve the Register’s usefulness as a risk assessment tool for proponents. For example, the Register will include spatial information highlighting areas of likely Aboriginal Heritage sensitivity.

The current “Register of Places and Objects” will be renamed the “Aboriginal Heritage Register”.

There is currently a lack of certainty around who the appropriate people are to speak for the land.

The new system contemplates the establishment of “Local Aboriginal Heritage Services” (LAHSs) with functions to include identifying the right people speak for the land. The LAHSs will be overseen by a new, skills based, “Aboriginal Heritage Council” which will have various administrative, advisory and supervision functions.

It is proposed that LAHSs will be able to advise proponents of areas where there is no heritage, and where projects can proceed without delay. They will also enter into agreements with proponents regarding heritage protection (in a similar way as under the current system). However, if a land use proposal governed by such agreement will impact heritage, reliance on the agreement will require that it be “ratified” by the Aboriginal Heritage Council or the Minister as meeting certain standards (more on this below).

If there is no LAHS in place for a particular area, the Department will serve the same function.

The Current Act does not regulate heritage consultants / professionals or the quality of their work.

A “Directory of Heritage Professionals” will be published by the Department indicating the qualifications and experience of people purporting to be heritage professionals.

The Directory will not be an endorsement of those professionals by the Department, however the Aboriginal Heritage Council will prescribe standards for research and surveys conducted in relation to the assessment of proposals. Submission of sub-standard materials will delay the approval of proposals and in this way it is intended that market forces will “eliminate poor performers from the system.”

Distrust between Traditional Owners and proponents can make it difficult to reach agreement or expedite surveys, and the current system provides no recourse where agreements cannot be reached or a survey is taking too long.

If no agreement can be reached between land users and the relevant LAHS in respect of a particular proposal, the Aboriginal Heritage Council will nonetheless be able to make a recommendation to the Minister as to whether the proposal should proceed and on what conditions.

The Aboriginal Heritage Council will also monitor the performance of LAHSs and be empowered to de-register any LAHS that fails to meet required standards for advice and services.

It is also proposed that the Department will provide assistance to parties to “try to overcome their differences” when disputes arise (although it is not clear how this will be achieved).

Comment: The supervisory and disciplinary role of the Aboriginal Heritage Council over LAHSs has the potential to address many of problems associated with slow / poor-quality surveys and stalled negotiations. However, the Council’s effectiveness will largely depend on the standards it sets (which are yet to be seen) and how active it is performing these functions.

Compliance costs under the Current Act are high, in particular the cost of surveys.

It is as yet unclear what costs and/or fees will be associated with the new land use approval regime, and who will bear those costs.

Similar to the current system, proponents may still reach agreement as to heritage clearance processes and associated fees payable with the relevant LAHS. However, in order for the agreement to be enforced in respect of a proposal that will impact heritage, the agreement needs to be ratified by the Aboriginal Heritage Council.

This will require the parties to demonstrate to the Council that they have negotiated in good faith and conducted negotiations equitably. This requirement appears to draw upon the obligation to negotiate in good faith in the context of Future Act negotiations under the Native Title Act.

Comment: The Discussion Paper does not address how this proposal will deal with heritage agreements that are already in place, and this creates some uncertainty as to the ongoing viability of existing Aboriginal heritage agreements.

The current lack of regulation of surveys means there is low transparency and land must often be surveyed multiple times (further contributing to high compliance costs).

If a proposed activity is in an area that has been previously surveyed, it is unlikely the survey will need to be repeated if the survey standards required by the Aboriginal Heritage Council have been met.

It is proposed that transparency will also be increased by requiring that information about the location and nature of heritage identified by a survey be published on the (reformed) Aboriginal Heritage Register.

Comment: While the standardisation of surveys is a positive proposal, the dynamic nature of “heritage” is likely to continue to undermine the level of reliance that land users can be place on historical surveys. It remains to be seen whether the new system will create greater certainty in this regard and/or will have any impact on compliance costs.

Heritage approvals do not currently run with the land.

Approvals for land use proposals issued under the new system will run with the land and be transferrable. However, where the transferee significantly modifies the activities or proposes entirely different land uses, fresh approvals will be required.  

While the proposals set out in the Discussion Paper are aimed at addressing many of the issues identified by industry with the current regime, it remains to be seen how these proposals will play out in practice.

Next steps

The Discussion Paper invites submissions on its proposals by 31 May 2019. Further materials and supporting information about the review of the Current Act is available from the Department’s website: https://www.dplh.wa.gov.au/aha-review.

The third and final phase of public consultation in relation to the review will involve release of draft new legislation in the form of a Draft Exposure Bill. Bellanhouse expects to release further updates on the review process in due course.

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