The Aboriginal Heritage Legislation Amendment and Repeal Act 2023 has been passed by Parliament and has received Royal Assent. This Act repeals the Aboriginal Cultural Heritage Act 2021 and reinstates an amended Aboriginal Heritage Act 1972 as of 15 November 2023.

This means that the Aboriginal Heritage Act 1972 will come into effect as of Wednesday, 15 November 2023. Read:

The Bill here: Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 

How the Bill will integrate with the Aboriginal Heritage Act 1972 with the amendments in blue. 

The Explanatory memorandum  explains each of the amendments.

The Second reading speech from Minister Buti 

AMEC’s media statement here.

Government Materials

AMEC acknowledges the traditional custodians throughout Western Australia. We pay our respects to their Elders both past, present and emerging.

Major Changes to Aboriginal Cultural Heritage Reform

How does this legislative reform affect the Expedited Procedure?

The National Native Title Tribunal has issued an open letter clarifying how it will handle the impact of this legislation.  AMEC has been told by DMIRS that reasonable requests for extensions of time or adjournments for matters heading to the National Native Title Tribunal (NNTT) will not be objected to by the Department. Namely if the requests are being sought to provide some time for all parties (including DMIRS) to digest the proposed changes and how they might impact the expedited procedure process.

The following information was developed to support the implementation of the new Aboriginal Cultural Heritage Act 2021. Now that this new Act will shortly be repealed,  much of the material below will no longer be relevant. AMEC is working with Government to understand implications for members and will continue to update this page with new information as it comes to hand. 

Information to Support Industry Implement the New Act

AMEC’s Aboriginal Cultural Heritage Resources Hub was developed to support the West Australian mineral exploration and mining industry following the introduction of the new West Australian Aboriginal Cultural Heritage Act 2021 on 1 July 2023.

AMEC developed the following resources to support companies to effectively and efficiently adapt to the new legislated requirements, ensuring the mineral exploration and mining industry has a point of reference that consolidates the best available information and a suite of examples for best practice.

Across our industry, there are many genuine improvements and efforts being initiated to ensure mineral exploration and mining improves the social and economic wellbeing of all Australians, both indigenous and non-indigenous. 

The information, examples, and templates featured in this resource are intended to facilitate the activities for a range of companies.

If you have best practice considerations or would like to follow up on a particular example, please do not hesitate to reach out to a member of our team.

How to use these documents

These documents are intended to assist proponents in planning and subsequently carrying out mineral exploration and mining in Western Australia.

They summarise parts of the Aboriginal Cultural Hertiage Act 2021 (WA) (ACH Act); Aboriginal Cultural Heritage Regulations 2022 (WA); and applicable guidelines published by the Department of Planning Lands and Heritage (as at June 2023). These documents are subject to legislative or regulatory change.

These documents are not intended to be legal advice, nor are they an exhaustive guide for compliance. Proponents should review and obtain the documents independently and obtain independent advice if required.

The documents are intended to be used in a sequential manner.  A proponent should, before carrying out any activity, review the Due Diligence Assessment checklist.  If, following the application of that checklist, the proponent determines that its activities are Tier 3 activities and an ACH Management Plan may need to be negotiated and approved, the Preparation and Timetable for the Development of an ACHMP may be used to assist and inform that procedure.

If the proponent has applied the above processes and determined that an ACH Management Plan is required, the Aboriginal Cultural Heritage Management Plan Shell can be used to layout a proposed structure for such a plan, and provide background and statutory basis for the inclusion of certain parts.

Due Diligence Assessment Checklist

“What is the Due Diligence Assessment process?”

This is a question that was commonly asked by AMEC members in the lead up to the release of the Aboriginal Cultural Heritage Act 2021. 

A Due Diligence assessment is a process that a proponent must follow to have a defence against future consideration.  A checklist has been prepared that steps through the tiers and the Due Diligence Assessment. 

Preparation and Timetable for the Development of an ACHMP

AMEC has commissioned this guide to step a proponent through the necessary considerations when drafting an Aboriginal Cultural heritage Management Plan (ACHMP).  It is important for a proponent to consider how they undertake an ACHMP and ensure they are compliant.

Aboriginal Cultural Heritage Management Plan Shell

This shell template provides a legally compliant base document that companies can complete for their specific location.  It is drafted to adhere to the requirements of the Act, which may make it repetitive on first reading.

Principles for Effective Communication

A principles document has been commissioned by AMEC to underline the fundamental principles of what is expected for respectful engagement. Engaging in a respectful manner is crucial for the Aboriginal Cultural Heritage Act to work smoothly and this document outlines an entry level overview of expectations.

Requests for Mineral Exploration Expenditure exemptions

AMEC has received the following correspondence from Minister Johnston regarding the treatment of requests for exemptions to mineral exploration expenditure requirements due to the implementation of the new Aboriginal Cultural Heritage Act 2021 (ACH Act) on 1 July 2023.  

Standard Heritage Agreements in Settlement Areas

For proponents operating in the Government settlement areas (ie. South West and Yamatji etc), AMEC received the following advice from the Minister for Aboriginal Affairs.

Environmental Protection Authority Guidance

The EPA has reviewed and updated its Social Surroundings guideline to reflect the new Aboriginal Cultural Heritage Act 2021, and has also developed a supporting Interim Technical Guidance to provide additional information on how the EPA will consider Aboriginal cultural heritage under the Environmental Protection Act 1986.

Statement of Regulatory Intent

While land users and industry sectors adjust to the new system, the State Government will adopt a responsible, reasonable and education-first approach for the first 12 months in regard to compliance with the new Act – similar to the approach being taken for implementation of WA’s new work health and safety laws. A Statement of Regulatory Intent explains how the Government will approach compliance.

Activity Table for Mineral Exploration and Mining Activities

AMEC has developed an Activity Table that clearly identifies which mineral exploration and mining activities falls into each category and includes all relevant sections from the Act. 
The Table has been checked and endorsed by the Department of Planning, Lands and Heritage (DPLH).

Soil Sampling – Practical Example & Letter From the DG

AMEC has developed a specific example demonstrating how the new soil sampling requirements work in practice, and the process explorers should follow. 
This ensures that the standard practice around mineral exploration soil sampling programs can continue without requiring a permit.
This example has been checked and endorsed by the Department of Planning, Lands and Heritage (DPLH.
Also provided is a copy of the letter to AMEC, confirming the application of the legislation to the practice of soil sampling, signed by the Director General of the Department of Planning, Lands and Heritage, Mr Anthony Kannis.

 

AMEC Aboriginal Cultural Heritage forum materials

On 23 May 2023, AMEC held an Aboriginal Cultural Heritage Forum sponsored by Regis Resources. The Keynote presentation was provided by Mr Ben Harvey, Director of the Department of Planning, Lands and Heritage (DPLH).

A copy of the slides and a video from Mr Harvey’s presentation can be found below, along with a panel discussion of how to approach this coming transition with AMEC members, Claire McGowan of Mining Access Legal, Marshall McKenna of Gilbert + Tobin, and Paul Harley of Thomson Greer.