Western Australia’s contentious Aboriginal Cultural Heritage Act 2021 has officially been repealed, following the implementation of amendments to the original 1972 Aboriginal Heritage Act.
Western Australia’s contentious Aboriginal Cultural Heritage Act 2021 has officially been repealed, following the implementation of amendments to the original 1972 Aboriginal Heritage Act.
The amendments to the 1972 Act strengthen the role of Aboriginal people in the approvals process, prohibit ‘gag clauses’, and provide equal rights of review for native title parties on ministerial decisions under the Act’s contentious section 18.
They remove the burden placed on landowners and proponents under the failed 2021 Act, which was implemented from July 1 and scrapped five weeks later.
At the time the scrapping was announced, Premier Roger Cook conceded the laws went too far, were too complicated, and placed unnecessary burdens on landowners.
Mr Cook said yesterday that the amendments to the 1972 Act would give the state the opportunity to work with Aboriginal groups proactively.
He backed the changes to effectively protect Aboriginal cultural heritage.
“I’m satisfied that the simple and effective changes that we brought as a result of this legislation will lead to ongoing protection of Aboriginal cultural heritage,” Mr Cook said.
“Obviously, the circumstances that led to that work weren’t ideal.
“We continue to work with all stakeholders to make sure that we can protect Aboriginal cultural heritage, but not put an unnecessary break on our economic and other activities.”
The repealed 2021 Act was developed following five years of consultation and had required landowners to make their own assessment of the need for cultural heritage surveying on their own land and take responsibility for the cost of work carried out.
Designation for surveying was to be granted to bodies granted Local Aboriginal Cultural Heritage Services (LACHS) status, none of which were established when the laws were implemented on July 1.
The LACHS model was subsequently scrapped, with the funding to be put towards a state heritage survey carried out across the state by the government over the next decade.
The repeal is also significant due to the fierce public and parliamentary debate raged in the lead up to the July 1 implementation of the 2021 Act.
That included accusations in June by the newly minted premier of opposition dog-whistling when concerns were raised by the opposition.
During question time, Mr Cook accused the opposition of being “like a dog returning to its own vomit” in opposing legislation designed to deliver greater Aboriginal cultural protections.
A member of the government was later rebuked for shouting accusations of racism across the parliament.
An 11th-hour softening, with a commitment to a “light touch” approach, did little to appease the public concern – particularly from pastoralists.
Opposition leader Shane Love said today’s repeal could not come quickly enough and attacked the premier once again for his initial approach to the debate.
“Over four months since the announcement that the ACH Act would be repealed, the wait for Western Australia is finally over,” he said.
“When questions were raised early, Labor deflected and used offensive language such as likening opponents as 'dogs returning to their vomit’ and telling them ‘For God’s sake; get on the right side of history.
“Today, history gets a fresh coat of truth.”
The decision to repeal the 2021 Act was not universally welcomed.
A representative of the PKKP People - the traditional owners of Juukan Gorge where ancient rock shelters were destroyed by Rio Tinto in 2020 - accused the government of treating First Nations people as second-class citizens in response to the scrapping announcement.
The Aboriginal Heritage Act 1972 was restored with amendments today.
In an email to clients following the repeal, mining industry Native Title legal expert and Mining + Heritage Legal founding director Jack Cullity said while the legislative bar had now been set lower than the 2021 Act sought to enforce, many mining industry stakeholders were already operating close to the standard intended with the initial rollout of the repealed laws.
He encouraged explorers and developers seeking to progress work quickly and efficiently to apply elements of the repealed act, even though they were not prescribed under the 1972 Act amendments.
"Many of the concepts in the '21 Act reprsented industry leading best practice," he said.
Mr Cullity encouraged explorers and miners to continue to proactively engage and consult with Native Title groups and take all reasonable steps to mitigate or avoid harm in the course of their work by undertaking proper due diligence.