Cultural heritage legislative and 'best practice' gap returns 6 min read
Just five weeks after its commencement, the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) has been repealed, and will be replaced with an amended version of the Aboriginal Heritage Act 1972 (WA) (1972 Act) – the very legislation it was intended to overhaul.
The return to a framework that was roundly criticised in the course of the Juukan Gorge Parliamentary Inquiry will only emphasise the gap between legislative requirements and the 'best practice' cultural heritage management standards that have become the de facto expectation of stakeholders.
In this Insight, we explain the repeal of the ACH Act and consider the implications of the transition back to the 1972 Act, including the business human rights risks this presents.
- The proposed amendments to the 1972 Act address key areas of focus in the Juukan Gorge Parliamentary Inquiry, including:
- a duty to report new information about Aboriginal sites;
- a right of State Administrative Tribunal (SAT) review for a native title party aggrieved by the Minister's decision to consent to impacts to an Aboriginal site (a 'section 18 consent'); and
- a prohibition on certain types of 'gag' clauses in agreements.
- The approval requirements under the 1972 Act fall short of national and international best practice standards in relation to cultural heritage protection, which have increased in prominence in recent years.
- Businesses will need to ensure they consider, and are implementing, their policy positions and commitments regarding engagement with First Nations groups and management of cultural heritage. The large gap between legislative requirements under the 1972 Act and best practice standards and stakeholder expectations means that many businesses will be implementing cultural heritage practices that go beyond the legislative requirements.
- The gap between legislative requirements and the human rights policy commitments of many investors and financiers will mean that they need to ensure they have robust human rights due diligence and related governance and risk management processes in place, to mitigate 'bluewashing' risks.
In house / general counsel; cultural heritage and communities teams, external affairs, sustainability teams.
On Tuesday, 8 August 2023, the WA Premier, Roger Cook, announced the repeal of the ACH Act and, the following afternoon, that the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (WA) (the Bill) had been introduced into Parliament.
The Bill repeals the ACH Act and restores the operation of the 1972 Act, with what the Premier has described as 'simple and effective' amendments:
- Review of decisions in relation to section 18 consents – under the 1972 Act, it is an offence to impact an Aboriginal site without section 18 consent from the Minister for Aboriginal Affairs. Native title parties will be afforded a right of review at the SAT if they are aggrieved by the Minister's decision under section 18. This addresses a key criticism of the 1972 Act, which only afforded a right of review to proponents. However, the Premier has a new power to 'call in' review applications and determine them personally if they are of 'State or regional importance', which would effectively override this right of review.
- Limited prohibition on 'gag' clauses – clauses of agreements that would prohibit a native title party, or person who is a member of a native title party, from performing a function under section 18 or applying for or being involved in a SAT review process are of no effect (regardless of when the agreement was entered into).
- New information about Aboriginal sites – section 18 consent holders will be required to notify the Minister of any new information about an Aboriginal site that they become aware of after 1 July 2023. If the section 18 application process was commenced during the ACH Act transitional period (23 December 2021 to 1 July 2023), the obligation applies to information the section 18 consent holder became aware of after 23 December 2021. The Minister may amend, revoke or confirm a section 18 consent in light of receiving new information about an Aboriginal site.
- Aboriginal Cultural Heritage Committee – the Aboriginal Cultural Heritage Council (the ACH Council) (established by the 1972 Act) and the Aboriginal Cultural Materials Committee (the ACMC) (established by the 1972 Act and abolished by the ACH Act) will both be replaced by a new committee, the Aboriginal Cultural Heritage Committee. The Committee will have largely similar functions to the ACMC – principally, to receive section 18 notices and make recommendations on them to the Minister – but will comprise the newly appointed ACH Council members.
- LACHS, Permits and Management Plans – the concept of Local Aboriginal Cultural Heritage Services (LACHS) will not be continued, and any Aboriginal Cultural Heritage Permits or Management Plans granted under the ACH Act will become section 18 consents under the 1972 Act. Applications made but not yet determined under the ACH Act will become section 18 notices given to the Aboriginal Cultural Heritage Committee.
- Fees – the Government has indicated it will be developing a 'user pays' fee system over the coming months.
Notably absent from the amendments to the 1972 Act are:
- Holders and transfer of section 18 consents – while transfer of authorisations was to be possible under the ACH Act, there is no transfer mechanism under the 1972 Act for section 18 consents. Further, there are no proposed changes to who is eligible to apply for and hold a section 18 consent.
- Definition of Aboriginal cultural heritage – the definition of Aboriginal cultural heritage under the ACH Act was broader than in the 1972 Act and recognised that Aboriginal people are the primary custodians of their cultural heritage. This broader definition is not picked up by the Bill, which reverts to the former concept of 'Aboriginal sites', determined by the Committee.
- Consultation obligations – one of the most prominent features of the ACH Act was the information provision and consultation obligations on proponents, which went some way to embedding elements of free, prior and informed consent (FPIC) in the authorisation process. The Bill makes no express provision for consultation with Aboriginal groups in the section 18 process. However, it enables regulations (which have not yet been made publicly available) to provide for 'procedural matters' for the purposes of section 18. It remains to be seen whether this will lead to any substantive consultation obligations.
- EPA assessment of 'social surroundings' – the Environmental Protection Authority (the EPA) will continue to have a role in assessing impacts to cultural heritage under the Environmental Protection Act 1986 (WA). Proponents with proposals currently before the EPA will need to consider statements made in relation to managing impacts on Aboriginal cultural heritage, to ensure they remain accurate, and may need to engage with the EPA regarding the effect the legislative change will have on its assessment of individual proposals.
There are increasing expectations on project proponents, and stakeholders connected to projects (such as financiers and investors), to align with international human rights instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples, and principles, such as FPIC, contained in those instruments (see our Insight).
A range of stakeholders, including First Nations groups and investors, considered that the 1972 Act provided inadequate protections for cultural heritage. This view was reflected in the Federal Parliament Joint Standing Committee on Northern Australia's final report into the destruction of cultural heritage sites at Juukan Gorge (the Juukan Report). It identified that the 1972 Act 'became, in practice, a mechanism through which the disturbance, damage and destruction of both physical and intangible Aboriginal cultural heritage has repeatedly taken place' and 'failed to strike a balance between the needs and aspirations of the various parties and has excessively favoured the interests of proponents'.
Of particular concern in the report was the section 18 process, which excluded the voices and interests of Traditional Owners, vesting the sole decision-making power (to approve harm to Aboriginal sites) in the Minister – a system of 'damage by permit'. It is this section 18 process to which the WA system will revert.
Once the ACH Act is repealed and the 1972 Act comes back into force, there will be a significant gap between domestic cultural heritage protection laws in WA and best practice cultural heritage standards. Businesses will need to be mindful that policy statements and commitments to apply best practice standards are unlikely to be fulfilled by complying with the 1972 Act processes alone.
In this context, key implications of the return to the 1972 Act for businesses, from a human rights perspective, are likely to be:
- increased pressure on proponents to commit to FPIC in relation to engagement with First Nations people and cultural heritage management practices;
- continuing scrutiny of the on-ground implementation of businesses' commitments in relation to First Nations people and cultural heritage management practices, with businesses at risk of exposure to claims of 'bluewashing', stakeholder activism (including shareholder action) and reputational damage if there is any perceived failure to implement cultural heritage commitments. This applies to project proponents and to businesses linked to a project (such as financiers and institutional investors);
- where the expectations of First Nations groups are not met, increased risk of review applications being brought by or on behalf of First Nations groups, both under the new SAT mechanism in the 1972 Act, and outside of the 1972 Act framework (such as under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) or non-judicial mechanisms: eg complaints to UN bodies or to the Australian Organisation for Economic Co-operation and Development (the OECD) National Contact Point in relation to compliance with the OECD Guidelines for Multinational Enterprises).
While there will be a return to the familiar framework for cultural heritage management in WA, it remains to be seen whether the 1972 Act 2.0 will achieve the balance between the interests of proponents and First Nations groups that the Juukan Report identified was lacking.
Businesses will need to:
- consider the implications of the legislative change from a project permitting and scheduling perspective, including implications for agreements with First Nations groups and any environmental impact assessment processes currently underway;
- review commitments (such as in human rights policies) regarding engagement with First Nations people and cultural heritage, and ensure these commitments are well understood in the context of WA projects; and
- ensure robust consultation, human rights due diligence and related governance and risk management processes are in place, to address business human rights risks relating to First Nations people and cultural heritage.
At [4.124], [4.126].