The State Government has brought long-awaited (and arguably overdue) changes to the Aboriginal heritage protection regime a step closer, with the release for public comment of the proposed Aboriginal Cultural Heritage Bill 2020 (Bill), which if enacted, will eventually replace the Aboriginal Heritage Act 1972 (WA) (AH Act).
The Bill proposes a significant strengthening of the legal protections that are currently in place for protecting Aboriginal heritage. In particular, the Bill proposes a new regime for the identification of Aboriginal cultural heritage, the steps that need to be taken to obtain approval to do works over an Aboriginal heritage place and the legal consequences if somebody interferes with an Aboriginal heritage place without having the proper approvals in place.
The Bill will impact upon those industries that regularly propose works over areas that are of cultural importance to Aboriginal people, which would include the resources and property development industries. It is fundamentally important that professionals in those industries understand the new obligations, especially given the proposed significant maximum penalties, clauses that reverse the onus of proof in criminal prosecutions and provisions that may see directors held personally liable for acts of their companies.
Aboriginal cultural heritage
The Bill will generally protect “Aboriginal cultural heritage”, which is defined very broadly. If somebody happens to locate something that constitutes Aboriginal cultural heritage as defined in the Bill, there will be a duty to report. Reported Aboriginal cultural heritage will be recorded in a dedicated directory, which will be publicly searchable to an extent.
The Bill will make it an offence to “harm” Aboriginal cultural heritage, absent an approval being in place. The Bill will also introduce a due diligence defence, which will say that an offence of harming Aboriginal cultural heritage does not arise where a person has undertaken proper due diligence and could not reasonably have been expected to know that the harm in question would arise. The due diligence defence will have a rather high threshold, so mere ignorance or carelessness will not be an excuse. With this in mind, due diligence of Aboriginal cultural heritage is likely to carry elevated importance in future.
The approvals regime under the Bill will be divided between ACH permits for low impact activities and ACH management plans for medium to high impact activities. What exactly constitutes a low impact activity on the one hand and a medium to high impact activity on the other hand is proposed to be addressed by regulations, so this information is not currently known.
The process for preparing an ACH management plan contemplates an agreement ideally being reached between a proponent and the relevant Aboriginal entity. If no such agreement can be reached, then the Bill contemplates that the Minister will make the final decision on whether to approve an ACH management plan.
The Bill contemplates significant maximum penalties for harming Aboriginal cultural heritage. For example, the proposed maximum penalty for a body corporate that causes significant harm to Aboriginal cultural heritage will be a fine of $10,000,000 plus an additional maximum daily fine of $500,000 in the case of a continuing offence. This compares to the standard maximum penalty for a body corporate in the AH Act, which is only $50,000 plus a daily penalty of $1,000 for a continuing offence.
The Bill contemplates a limitation period of 6 years for a prosecution to be brought on an offence under the Bill. This compares to the standard one year limitation period for summary offences in Western Australia. This would mean that a prosecution could be brought many years after a particular incident occurs, including where evidence is not discovered until well after the event.
The Bill contains a provision saying that an employer may be held criminally liable for the acts of their employees in relation to Aboriginal cultural heritage. Another provision says that a director of a company may be held criminally liable for the acts of their company in relation to Aboriginal cultural heritage. In these scenarios, the relevant employer or director may only be able to escape prosecution in their own name if they can establish that all reasonable steps were taken in advance to prevent the employee or the company (as the case may be) from committing the offending conduct. With this in mind, companies will now need to ensure that they have comprehensive procedures and policies in place for managing Aboriginal cultural heritage issues.
Another provision of the Bill proposes to reverse the onus of proof in relation to various facts that would have to be established by a prosecutor to make out an offence relating to Aboriginal cultural heritage. This practically means that a charge relating to Aboriginal cultural heritage may be difficult to defend.
An interesting feature of the Bill is the proposal to allow for the establishment of “protected areas”. The Bill contemplates that an area may be declared as a protected area if it exhibits outstanding Aboriginal cultural heritage significance.
Notably, unlike the equivalent provisions under the AH Act, which provide for an affected landowner to be duly compensated, the proposed provisions in the Bill do not appear to contain any compensation mechanism. This could mean that protected area declarations could be used in future as a mechanism for government or objectors to attempt to sterilise the development or resource potential of land, without compensation being paid to the affected parties.
The Bill contemplates a limited scope of appeals to the State Administrative Tribunal (SAT). Under the Bill, SAT reviews can be commenced with respect to approval decisions and in relation to challenging enforcement notices, which is to be expected. Interestingly, in relation to a decision on whether to approve an AHC management plan, the relevant Aboriginal group will have a right of SAT review, which would effectively constitute a third-party right of appeal (which is rare in Western Australia). Notably, the Bill does not contemplate any SAT review rights with respect to a protected area declaration, despite the practical significance of such decisions.
The Bill provides that an approval already issued under the AH Act (including a section 18 consent) continues in effect following the repeal of the AH Act, as though it was an ACH permit or an ACH management plan, as granted under the Bill. There will also still be limited scope for new section 18 permits to be granted pursuant to the AH Act, after the Bill becomes law, but their duration will be limited to 5 years.
The Bill is still open for consultation and its content may change before it becomes law. It would however appear to be the case that the Aboriginal heritage protection regime in Western Australia is about to change significantly and affected parties need to be ready and to properly understand their new rights and obligations, relative to the existing AH Act regime.
If you have any questions about the Bill, the AH Act or the legal protecting of Aboriginal heritage generally, please do not hesitate to contact the Lavan Planning and Environment Team.