The Western Australian Minister for Aboriginal Affairs, Hon
Peter Collier, has released the Aboriginal Heritage Amendment
Bill 2014 (WA) (the Bill). The Bill proposes
a number of amendments to the current Aboriginal Heritage Act
1972 (WA) (Act) and the Department of
Aboriginal Affairs (DAA) is accepting written
submissions on the changes until 5pm on 6 August 2014.
In this Alert, Partner Jonathan Fulcher and Solicitor Kylie
Panckhurst set out the top five things you should know about the
The Bill responds to industry concern about delays in the
administration of the current Act. The basic idea of the amendments
is to lessen the timeframes associated with that administration and
increase penalties for offences under the Act.
The Bill provides for:
Providing that the CEO will evaluate, on behalf of the
community, the significance or otherwise of Aboriginal sites and
Engagement with the Aboriginal cultural Committee only if the
CEO requests it;
The making of declarations about the non-existence of sites on
The granting of permits for the purposes of section 18 to deal
with land affected by sites of significance; and
The creation of registers to record sites and places.
1. Section 18 permits
Similar to the current regime, a section 18 permit is required
to use the land in circumstances which would normally breach the
Act. The CEO's evaluation of sites and places is likely to
cause significant concern in the Aboriginal community and may
create delays in the introduction of these amendments.
Currently, only the land owner can lodge a section 18
application; conversely, the Bill drafting allows anyone1 to make
The Bill also provides for the permits to be transferred between
different land users, where their activities are within the scope
of the permit.
Under the Bill all section 18 applications will be considered by
the Chief Executive Officer (CEO) of the DAA. The Committee no
longer has an "as of right" involvement in the assessment
The Bill provides that where the CEO considers that:
there are no Aboriginal Sites on the land, it may issue a
declaration (new process);
there are Aboriginal Sites on the land, but such sites will not
be adversely affected by the proposed activities, it may issue
permit (new process); or
there are Aboriginal Sites on the land and such sites may be
adversely affected by the proposed activities, the application must
be referred to the Aboriginal Cultural Material Committee to assess
and the Minister to grant or refuse (maintains status quo).
A new register of declarations and permits is proposed by the
Bill to assist with enforcing breaches.
3. Heritage surveys and land access
The Bill does not require heritage surveys and consultations
with traditional owners to occur. Although, it will be easier to
obtain a CEO declaration that there are no sites if such steps have
been undertaken by the proponent.
Obtaining a section 18 permit or a CEO declaration does not give
a proponent permission to access the land. Access will need to be
obtained through other processes such as the Native Title Act
4. Aboriginal Sites evaluation and registration
The Bill looks to introduce new regulations which include a
consistent assessment criteria and process for evaluating a site or
object. If an Aboriginal Site or Object is identified, the Bill
requires more detailed information to be registered about the
nature and location of a site.
The CEO will be the main entity assessing the sites, objects and
To encourage sites to be registered and trust between the DAA
and traditional owners, the Bill provides that the defendant in any
prosecution for damage of a site will have to prove that the area
is not a site on the balance of probabilities.
5. Stronger compliance regime
If you damage an Aboriginal Site or Object, the Bill provides
infringement notices to be issued for minor offences;
the Court to order remediation where acceptable to the
significantly higher penalties (aligned to the Queensland and
Victoria Aboriginal heritage legislation, for example: $500,000 for
a body corporate first offence, up from $50,000); and
a limitation period of five years for bringing prosecutions
(currently one year).
For a copy of the draft Bill and details on lodging a submission
1Anyone wanting to deal with land s18A(1) of
Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
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