New draft regulations concerning Aboriginal heritage laws in Western Australia were made public Wednesday. The proposed regulations are part of the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023, currently before the State Parliament.

This Bill aims to repeal the Aboriginal Cultural Heritage Act 2021, reinstating the Aboriginal Heritage Act 1972 - with updated and modernised amendments.

This will be the Western Australian Government's third attempt to amend the legislation related to Aboriginal cultural heritage. The first discussion paper and draft legislation were released by then Aboriginal Affairs Minister Ben Wyatt in 2019, but was not progressed through Parliament which dissolved ahead of the 2021 state election.

The second resulted in the 2021 Aboriginal Cultural Heritage Act and was met with community resistance. Aboriginal leaders and other cultural heritage experts warned the legislation did not empower Traditional Owners but created heavy responsibilities for Aboriginal organisations.

A backlash to the Act saw then new Premier Roger Cook stating his government "took it too far" and would rescind the Act and try again.

Aboriginal Affairs Minister Dr Tony Buti has since reiterated the state government's commitment to modernising legislation which had not been substantively updated since 1972.

"The Cook Government listened to community feedback and announced our intention last month to put alternate legislation in place," the Minister said.

"We are well advanced in delivering on that commitment with a Bill pending debate in Parliament, and draft regulations and key policy documents developed.

"We have worked to keep the restored process for managing and protecting Aboriginal cultural heritage simple – to focus on important amendments that will address key concerns without adding complexity and confusion."

Among the Bill's amendments are equal rights for review and requirements to report new information about an Aboriginal site. Additionally, a new framework has been created to more effectively manage and protect Aboriginal heritage, supported by the draft regulations and policy guidance. Administrative time-frames, particularly for Section 18 of the 1972 Act, are specified to offer certainty to both Traditional Owners and development proponents.

A new consultation policy has also been drafted to guide proponents through the Section 18 Consent process, which is pivotal when work or development is likely to impact Aboriginal cultural heritage.

"The consultation policy sets out the expectations for engagement with Aboriginal people about their heritage," Dr Buti said.

Further technical amendments are set to be introduced in Parliament next week. It is understood they include further clarity on the definition of a 'Native Title party' and the provision for the transfer of a Section 18 Consent due to land ownership change.

The government is also initiating a state-funded Aboriginal heritage survey program and a capacity-building initiative for Native Title parties, in collaboration with Aboriginal organizations.

The Minister emphasised the WA government's intention to implement the new system "as soon as practically possible" after legislative approval.

Zak Kirkup is a former Leader of the WA Liberal Party and former WA Shadow Minister for Aboriginal Affairs.