The final phase of co-design to support implementation of Western Australia's Aboriginal Cultural Heritage Act 2021 is underway, with the release of proposed guidelines to be discussed at 34 workshops across metropolitan, regional and remote communities.
WA Aboriginal Affairs Minister Tony Buti said the workshops, beginning next Monday, November 14, provide a final opportunity for Aboriginal organisations, industry representatives and local communities to contribute to the design of regulations and guidelines that will underpin the new Act.
"I encourage anyone with an interest in Aboriginal cultural heritage, or who undertakes any form of civil or construction works or any form of land management activities, to read the documents and participate in one of our 34 workshops across the State," he said.
"Similarly, I encourage any Aboriginal organisation with an interest in becoming a (Local Aboriginal Cultural Heritage Service) to find out more about the LACHS readiness grants program.
"The introduction of LACHS will provide certainty around the right people to consult, which will increase efficiencies in the heritage approvals process."
The guidelines will guide land users and proponents through the new Aboriginal cultural heritage protection system when the new laws come into effect mid-2023.
Mr Buti said matters to be finalised included the proposed Aboriginal Cultural Heritage Management Code which detailed the required due diligence assessment, proposed activity and consultation guidelines that set the standard for engaging Aboriginal people about their cultural heritage.
Another key issue is setting tiers of ground disturbance activities that could cause harm to Aboriginal cultural heritage, to determine whether an approval would be required, and whether that should be a permit or a more comprehensive management plan.
The new Act, while seen as an improvement by most on the notoriously racist 1972 legislation it replaces, has been widely criticised.
The Act was passed by parliament in December last year despite widespread opposition.
Many said the new Act does not meet the threshold of free, prior and informed consent, and noted that the final decision concerning contested Aboriginal Cultural Heritage Management Plans lies with the Aboriginal Affairs Minister, not with Traditional Owners.
Critics of the Act included the Kimberley Land Council, Yamatji Marlpa Aboriginal Corporation, the National Native Title Council, law professors Hannah McGlade and Greg McIntyre, former WA Law Society president Nicholas van Hattem, WA Law Society president Jocelyne Boujos and the Responsible Investment Association Australasia and Australian Council of Superannuation Investors.
The Act was contrasted unfavourably with the Northern Territory heritage regime, which empowers a 100 per cent Indigenous body elected by the land councils as the primary decision maker on Aboriginal heritage.
The United Nations also urged the Australian government to investigate the Act before it was passed into law.
In May, the Jamukurnu-Yapalikurnu Aboriginal Corporation and the Kimberley Land Council said the process for developing the Act's regulations and guidelines was being directed by the government, was marred by low participation levels, and did not truly reflect the principles of co-design.
Mr Buti said on Tuesday the new Act embedded consultation, due diligence, agreement making and informed consent within legislation.
"The focus of the new process is on agreement making, whereby two parties mutually arrive at an Aboriginal Cultural Heritage Management Plan that each are satisfied with," he said.
"In the rare instance where two parties - for example a miner and traditional owner group - are unable to reach agreement, the matter will be referred to the new Aboriginal Cultural Heritage Council for mediation.
"If agreement still cannot be reached, only then would a proposal be referred to the Minister for Aboriginal Affairs."
