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Australia – Proposed Amendments To The Aboriginal Heritage Act 1972 (WA).

22 July, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Native Title

 

What You Need To Know

 

  • The Western Australian Government has released the draft Aboriginal Heritage Amendment Bill 2014 (WA)for public comment.
  • The Bill will result in significant reforms to the Aboriginal Heritage Act 1972 (WA), and is designed to improve the way in which Western Australia’s Aboriginal heritage is protected and managed.
  • The amendments include a new approvals process that has significant advantages over the existing section 18 consents process – particularly the introduction of the ability to transfer permits and the fact that any person proposing to do an “act” may make an application (not just the owner of land).
  • Other amendments include the creation of new registers, increased fines for offences, and longer statutory limitation periods for prosecutions.
 

What You Need To Do

 

  • Submissions on the draft Bill are required by Wednesday 6 August 2014.
  • All land users should consider the impact of the proposed changes and consider making a submission.

 

Background


In June 2014, the Western Australian Government released the draft Aboriginal Heritage Amendment Bill 2014 (WA) (Bill). A copy of the Bill can be downloaded from the Department of Aboriginal Affairs’ website.


The review of the Aboriginal Heritage Act 1972 (WA) (Act) was first initiated by the State in May 2011. The Minister for Aboriginal Affairs (Minister) released a discussion paper in May 2012 which set out seven proposals to provide greater clarity, certainty, compliance, effectiveness, efficiency, fairness and flexibility for the Act. Those proposals went some way towards addressing the administrative problems that have, over time,created delays for industry and failed to promote good heritage outcomes.


Having considered public submissions on the 2012 discussion paper, the Department of Aboriginal Affairs (Department) has now released the draft Bill for comment.


Key Proposed Amendments


The Bill proposes the following key amendments:

 

  • Changes to the role and functions of the CEO of the Department, the Registrar and the Aboriginal Cultural Management Committee (ACMC). These changes include a significant expansion of the role of the CEO, who will (amongst other things) take over some functions previously carried out by the ACMC.
  • A new approvals process to replace the current section 18 consents process.
  • The creation of two new registers – a register of Aboriginal sites and objects which will replace the existing register, and a register of declarations and permits.
  • Increased fines for offences and longer statutory limitation periods for prosecutions.
  • Changes to the role of Aboriginal “traditional custodians” and other Aboriginal people with a significant interest.

 

New Functions Of The CEO, Registrar And ACMC


Fundamental changes are proposed to the functions of the various officers under the Act, including:

 

  • The CEO will take over some existing ACMC functions, including the assessment of the significance of purported Aboriginal sites and objects, as well as making some decisions to grant section 18 approvals.
  • The Registrar will be explicitly appointed by the CEO and will have responsibility for the day to day administration of the ACMC.
  • The Minister, Registrar and CEO will have the power to delegate their functions in writing to another officer of the Department.
 

Whilst overall these are useful changes, the current drafting provides a wide discretion to the CEO. In our view, Regulations should be made to address how various aspects of the Bill will be administered to provide industry with sufficient clarity and certainty. This should include clarity on the administrative processes of the ACMC, which havealso not been addressed by the Bill.


A New Approvals Process To Replace The Current Section 18 Consents Process


A new approvals process will be introduced to replace the existing section 18 consents process. Some key features of the new regime include:

 

  • Declarations – the CEO will be able to issue a declaration to a proponent that there does not appear to be any Aboriginal site on the land in question.
  • Permits – if there might be an Aboriginal site or object on the land, the CEO can give the applicant a permit to do certain “acts” (with or without conditions) provided any sites will not be destroyed, significantly damaged or altered, or adversely affected by the activity. If a site may be adversely affected, the application for a permit may be referred by the CEO to the ACMC for review so the ACMC can provide the Minister with a recommendation on the permit application (similar to the existing section 18 consents process).
  • Who can apply – unlike the current section 18 consents process which limits the right to apply for a consent to the owner of land only (which includes the holder of a mining tenement), anyone who proposes to do an “act” will be able to apply for a declaration or permit under the amended section 18 (eg a contractor undertaking land clearing works).
  • Transferability of permits – unlike the current section 18 consents which are personal to the holder and cannot be transferred, the CEO will be able to transfer permits from one person to another in certain circumstances.
  • Defence provisions – a person will have a defence under the Act (to the section 17 offence provisions) if they were acting in accordance with a section 18 permit or on land the subject of a section 18 declaration.
 

The new approvals process has significant advantages over the existing section 18 consentsprocess, particularly the introduction of the ability to transfer permits and the fact that any personproposing to do an “act” may make an application (not just the owner of land). 


However, some matters may benefit from further consideration and consultation, such as:

 

  • The form in which notices under section 18 are to be given should be prescribed by Regulations.
  • The scope of section 18 permits are limited to the applicant’s proposed “act” or “acts”, as opposed to current section 18 consents which are granted to an applicant for a proposed “purpose”. We query whether this inadvertently and unnecessarily limits the scope of section 18 approvals, and if so, whether the Bill should be amended to avoid that result.
  • The Bill (much like the Act) still does not specify sufficient detail for section 18 approvals processes and procedures. For example, how natural justice will be afforded and to whom, or if processes should be conducted within specific timeframes to provide industry with greater certainty. This should be dealt with in Regulations.
 

Establishment Of New Registers


The Bill proposes the establishment of two new registers:

 

  • A register of Aboriginal Sites and Objects (ASO Register) which will replace the existing register. The CEO will now make decisions about what is entered onto, or removed from, the ASO Register.
  • A register of declarations and permits (DP Register) which will include details of all current section 18 consents that are in place under the Act, and any conditions imposed on those consents.
 

These proposals offer significant improvements on the existing provisions. The establishment of the new DP Register will also make the existence andterms of section 18 declarations and permits more transparent and accessible.


Increased Fines And Longer Limitation Periods


The Bill proposes increased fines for offences, and longer statutory limitation periods for prosecutions:

 

  • Offenders may be subject to increased fines – in the case of corporations up to AUD 500k for a first offence (currently AUD 50k), and AUD 1m for subsequent offences (currently AID 100k).
  • Offenders may be ordered to take remedial action to restore a place or object to the state it was in before the offence. 
  • The limitation period for prosecuting offences is proposed to be increased from 12 months to five years.
 

Changes To The Role Of Aboriginal “Traditional Custodians” And Other Aboriginal People


The Bill contains a mechanism by which the ACMC may seek the advice of a prescribed body corporate when considering a matter that may affect native title, such as a section 18 matter. 


Native title holders and registered claimants will also be given notice of, and consequently a right to be heard in relation to, a proposal to make a place a protected area under section 19.


Next Steps


Stakeholders wishing to provide comments on the draft Bill will need to provide their submissions to the Department of Aboriginal Affairs by Wednesday 6 August 2014.

 

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For further information, please contact:

 

Geoff Gishubl, Partner, Ashurst
geoff.gishubl@ashurst.com


Jean Bursle, Partner, Ashurst
jean.bursle@ashurst.com


Tony Denholder, Partner, Ashurst
tony.denholder@ashurst.com


Gavin Scott, Partner, Ashurst
gavin.scott@ashurst.com


Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com


Andrew Gay, Ashursst
andrew.gay@ashurst.com


Chelsea Stanway, Ashurst
chelsea.stanway@ashurst.com

 

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