Yesterday the Western Australian Minister for Aboriginal Affairs, Hon Peter Collier, released the Aboriginal Heritage Amendment Bill 2014 (WA) (the Bill). The Bill proposes a number of amendments to the current Aboriginal Heritage Act 1972 (WA) (Act) and the Department of Aboriginal Affairs (DAA) is accepting written submissions on the changes until 5pm on 6 August 2014.
In this Alert, Partner Jonathan Fulcher and Solicitor Kylie Panckhurst set out the top five things you should know about the proposed changes.
The Bill responds to industry concern about delays in the administration of the current Act. The basic idea of the amendments is to lessen the timeframes associated with that administration and increase penalties for offences under the Act.
The Bill provides for:
- Providing that the CEO will evaluate, on behalf of the community, the significance or otherwise of Aboriginal sites and places;
- Engagement with the Aboriginal cultural Committee only if the CEO requests it;
- The making of declarations about the non-existence of sites on land;
- The granting of permits for the purposes of section 18 to deal with land affected by sites of significance; and
- The creation of registers to record sites and places.
1. Section 18 permits
Similar to the current regime, a section 18 permit is required to use the land in circumstances which would normally breach the Act. The CEO’s evaluation of sites and places is likely to cause significant concern in the Aboriginal community and may create delays in the introduction of these amendments.
Currently, only the land owner can lodge a section 18 application; conversely, the Bill drafting allows anyone1 to make the application.
The Bill also provides for the permits to be transferred between different land users, where their activities are within the scope of the permit.
Under the Bill all section 18 applications will be considered by the Chief Executive Officer (CEO) of the DAA. The Committee no longer has an “as of right” involvement in the assessment of applications.
The Bill provides that where the CEO considers that:
- there are no Aboriginal Sites on the land, it may issue a declaration (new process);
- there are Aboriginal Sites on the land, but such sites will not be adversely affected by the proposed activities, it may issue permit (new process); or
- there are Aboriginal Sites on the land and such sites may be adversely affected by the proposed activities, the application must be referred to the Aboriginal Cultural Material Committee to assess and the Minister to grant or refuse (maintains status quo).
A new register of declarations and permits is proposed by the Bill to assist with enforcing breaches.
3. Heritage surveys and land access
The Bill does not require heritage surveys and consultations with traditional owners to occur. Although, it will be easier to obtain a CEO declaration that there are no sites if such steps have been undertaken by the proponent.
Obtaining a section 18 permit or a CEO declaration does not give a proponent permission to access the land. Access will need to be obtained through other processes such as the Native Title Act 1993 (Cth).
4. Aboriginal Sites evaluation and registration
The Bill looks to introduce new regulations which include a consistent assessment criteria and process for evaluating a site or object. If an Aboriginal Site or Object is identified, the Bill requires more detailed information to be registered about the nature and location of a site.
The CEO will be the main entity assessing the sites, objects and areas.
To encourage sites to be registered and trust between the DAA and traditional owners, the Bill provides that the defendant in any prosecution for damage of a site will have to prove that the area is not a site on the balance of probabilities.
5. Stronger compliance regime
If you damage an Aboriginal Site or Object, the Bill provides for:
- infringement notices to be issued for minor offences;
- the Court to order remediation where acceptable to the traditional owners;
- significantly higher penalties (aligned to the Queensland and Victoria Aboriginal heritage legislation, for example: $500,000 for a body corporate first offence, up from $50,000); and
- a limitation period of five years for bringing prosecutions (currently one year).
For a copy of the draft Bill and details on lodging a submission click here.