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WHAT WILL THE AMENDED 1972 ABORIGINAL CULTURAL HERITAGE ACT ACTUALLY SAY?

 

The new Aboriginal Cultural Heritage Act 2021 (Act) will come into force on 1 July 2023, now being at the end of the 12 month transitional period from when the law was passed.

The Act is the result of bi-partisan parliamentary recommendations following what many agree is WA’s history of a lack of care for and destruction of aboriginal cultural heritage.  The most notable example is probably the recent destruction of the Juukan Gorge rock shelters.

The Act has far-reaching consequences for all landowners in Western Australia of land greater than 1,100m2 in size.  For example, from 1 July 2023, if you are:

  • a residential landowner, intending to dig a hole on your land and your land is more than 1,100m2 in size; or
  • a farmer and you want to put in a new dam,

you must consult the Act before you do so.

Under the Act, if your proposed hole on the residential land will be deeper than 0.5m and no Aboriginal Cultural Heritage reports exist for your land, you may be required to undertake due diligence to ensure the digging of the hole will not disturb a site of Aboriginal Cultural Heritage.

The same rules apply for the new dam you want to put in on your farm. It certainly applies to the mining industry.

The due diligence for all works involves consulting the Local Aboriginal Cultural Heritage Service (LACHS) in your area for confirmation that your hole, or the new dam, will not disturb any site of Aboriginal cultural heritage.

The current problem is, as at the date of writing this article, there are no LACHS in existence (though media reports advise that there are 45 applications pending from Aboriginal corporations).

In the absence of a LACHS you will need to consult with each native title party or knowledge holder in your area (NT Parties).

Under the Act, both the LACHS and the NT Parties can charge you a fee for providing you the above advice.

The Act sets out 3 tiers of activities that require some form of due diligence and/or approval for any form of disturbance of land more than 1,100m2.  The above “digging a hole/putting in a new dam” examples are some of the many listed activities caught by the Act.

Penalties for harming Aboriginal cultural heritage under the Act for individuals range from $25,000 to $1,000,000 and/or 5 years imprisonment depending how serious the harm is.  Any form of harm however is an offence.

Penalties for harming Aboriginal cultural heritage under the Act for corporations range from $250,000 to $10,000,000 depending how serious the harm is.   Again, any form of harm is an offence.  The Directors of a corporation can also be personally liable, unless they took reasonable steps to prevent the corporation from harming the Aboriginal cultural heritage. Many farming, excavation, and landscaping businesses are run through companies these days.

A copy of the ACH Management Code produced by the State Government to assist in understanding the Act can be found here.

Likewise, the native title, property and agribusiness law teams at HHG Legal Group are geared up and ready to help you avoid hefty penalties, or worse.

This new Act is not to be trifled with and it is hoped that the WA state government will allow more time for consultation and public education.

If you require assistance in relation to any of the information provided above, HHG Legal Group’s lawyers can provide advice to you and your business to minimise your future risk.

Contact us today by emailing Murray Thornhill at murray.thornhill@hhg.com.au or Matthew Lilly at matthew.lilly@hhg.com.au or calling us on (08) 9322 1966.

*This is general information only and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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