In April 2012 the Western Australian Department of Indigenous Affairs (DIA) published a discussion paper entitled ‘Seven proposals to regulate and amend the Aboriginal Heritage Act 1972 (AHA) for improved clarity, compliance, effectiveness, efficiency and certainty” (Discussion Paper). The Discussion Paper was based upon the recommendations of Dr John Avery, who previously held the position of the Director of Indigenous Heritage Law Reform at the Commonwealth Department of Sustainability, Environment, Water, Population and Communities, and was appointed by the Western Australian government as an independent consultant to advise on reforming the AHA.

Prior to making his recommendations, Dr Avery engaged in discussions with a range of stakeholders including Native Title Representative Bodies, various Aboriginal stakeholder groups, industry representatives such as the Chamber of Minerals and Energy (CME) and the Association of Mining and Exploration Companies (AMEC), several major and smaller mining companies and prospectors, and a range of academics and lawyers. Consultation through the DIA in relation to the reforms continues.

The Discussion Paper outlines 7 proposed reforms:

  1. Prescribe manner and form of Register,
  2. Additional criteria pertaining to the Aboriginal sites of State importance,
  3. Stronger compliance measures including civil penalties, remediation orders and adjustment to the onus of proof provisions,
  4. Site impact avoidance certificate,
  5. Enable the DIA to levy fees and recover costs for surveys and other services;
  6. Remove risk that section 18 consents may be technically invalid because of the definition of ‘the owner of any land’, and
  7. Investigate options to amend the AHA and the Environmental Protection Act 1986 (EPA) to streamline decisions about Aboriginal heritage.

It is not clear yet when a draft Bill will be read. As we understand it the State government is currently considering legislative priorities.

In the meantime, the DIA is already undergoing administrative reform to give effect to some of the proposals outlined. For example, the DIA are working with the Department of Mines and Petroleum (DMP) to improve the quality of the Register. Also, new Heritage Information Submission forms have been prepared and are being gradually implemented. The new forms were designed by the Aboriginal Cultural Materials Committee (ACMC) and are intended to improve the quality of site information recorded, and to reduce costs. Some stakeholders disagree that the new forms are having such effects.

Industry looks forward to further clarity with respect to the proposed reforms by way of a draft Bill. Watch this space for further progress.