WA government axes cultural heritage laws

In a surprising turn of events, the Western Australian government has repealed the recently introduced Aboriginal Cultural Heritage Act 2021.

On 1 July the Western Australian government introduced the new laws to manage activities that may harm Aboriginal cultural heritage, such as mining, farming practices, and property development.

The Aboriginal Cultural Heritage Act 2021 aimed to protect Aboriginal cultural heritage and prevent devasting outcomes that destroy significant sites, such as Rio Tinto being given permission to blast Juukan Cave, a 46,000-year-old Aboriginal site.

However, critics argued that the regulations were overly complex and placed undue burdens on landowners, leading to confusion and hindered implementation.

As such, the backlash has prompted the Western Australian government to reconsider its approach and revert back to the 50-year-old Aboriginal Heritage Act of 1972.

Western Australian Premier Roger Cook, who assumed office just eight weeks ago, emphasised the need for balance and clarity in the preservation of Aboriginal cultural heritage.

Mr Cook acknowledged the shortcomings of the repealed laws and stated that the government would be introducing “important amendments” to the original 1972 Aboriginal Heritage Act to address the concerns raised.

“The complicated regulations, the burden on landowners and the poor rollout of the new laws have been unworkable for all members of our community – and for that, I am sorry,” he said.

“WA is home to some of the world’s oldest known Aboriginal cultural heritage, we want to preserve this into the future, and ensure Western Australians can continue to live their lives and reach their full potential.”

REIWA welcomes repeal

REIWA chief executive Cath Hart has welcomed the Western Australian government’s response to industry, following concerns from rural members about how the Act was delaying rural transactions.

“REIWA supports the aims of safeguarding Aboriginal cultural heritage however we had shared with the Government the concerns raised by members and property owners that the 2021 regulations may have unintended consequences for residential transactions and development,” Ms Hart said.

The laws would have required property owners with land falling within a cultural heritage area, larger than 1,100 square metres, to undergo a Due Diligence Assessment (DDA) through the local authority before development.

Ms Hart said the 1,100-square metre threshold did not reflect the diversity of residential properties across Western Australia, as 1,100 square metres is a “relatively modest sized property in many areas”.

She said the changes will give residential and rural property owners the confidence to develop their property, whether to renovate, extend or subdivide, or add a dam or fences without fear of committing an offence by unknowingly disrupting Aboriginal cultural heritage.

What the repealed bill means?

The newly introduced Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 aims to provide confidence to property owners by allowing them to operate on their land without the fear of inadvertently disrupting cultural heritage.

As part of a long-term plan, the state government intends to conduct heritage surveys of unsurveyed areas in high-priority regions over the next decade, with the consent of landowners.

The core obligation for all landowners remains unchanged: not to knowingly damage an Aboriginal cultural heritage site.

The critical amendments to the restored legislation from 1972 include:

• The newly formed Aboriginal Cultural Heritage Council will take on the role of the committee established under the 1972 Act to make recommendations to the minister
• Proponents and native title parties will have the same right of review for section 18 decisions, with clear timelines and an ability for the Premier to call in a decision of ‘State significance’, to act in the interests of all Western Australians
• When section 18 has been approved, making it a requirement for the owner to notify the minister of any new information about an Aboriginal site – an important reform to help prevent another Juukan Gorge