The Western Australian Government is set to repeal controversial Aboriginal cultural heritage laws in an attempt to prevent a repeat of the Juukan Gorge incident, instead restoring the original Aboriginal Heritage Act of 1972, with the addition of simple amendments. 

The decision to revert to the original heritage laws, which had been in place for 50 years, draws on legal advice from the Solicitor-General, with the addition of the amendments. 

Feedback on the new legislation found it to be too complicated and prescriptive, however the Aboriginal Heritage Legislation and Repeal Bill 2023 aims to provide Western Australian property owners with the confidence to continue to operate on their own properties without unknowingly disrupting cultural heritage. 

The exemptions that were implemented as part of the 2021 law will no longer be required under the restored 1972 legislation, as every landowner is equal, and the changes announced impose no new burden on landowners before undertaking activities on their land.

The critical amendments to the restored legislation from 1972 include:

  • The newly formed Aboriginal Cultural Heritage Council will take on the role of the Committee established under the 1972 Act to make recommendations to the Minister
  • Proponents and Native Title parties will have the same right of review for Section 18 decisions, with clear timelines and an ability for the Premier to call in a decision of ‘state significance’, to act in the interests of all Western Australians
  • Section 18 has been approved, making it a requirement for the owner to notify the Minister of any new information about an Aboriginal site – an important reform to help prevent another Juukan Gorge

There will be no requirement on everyday landowners to conduct their own heritage survey. The State Government is also set to commence a long-term action plan over the next ten years, which will undertake heritage surveys in high priority areas of the state, with the landowners’ consent. Surveys will be centrally held and published by the State Government, which is set to be available by all land users. 

Support will be provided to existing Native Title groups, as the concept of Local Aboriginal Cultural Heritage Services will no longer continue. 

The cost recovery model which was implemented for proponents who needed to submit a management plan to the Aboriginal Cultural Heritage Council is also set to be replaced with a fairer and simpler model, to be established with industry in coming weeks.

The implementation group which consists of representatives from industries such as mining, farming, local government, Aboriginal corporations, property and the Aboriginal Cultural Heritage Council are all expected to ensure that a smooth transition to the renewed 1972 legislation occurs. 

 Western Australian Premier, Roger Cook, said, “The Juukan Gorge tragedy was a global embarrassment, but our response was wrong, we took it too far, unintentionally causing stress, confusion and division in our community.

“I’ve been the Premier for eight weeks now, and it’s obvious that we need to make changes, restore confidence in our cultural heritage system and get the balance right.

“The complicated regulations, the burden on landowners and the poor rollout of the new laws have been unworkable for all members of our community – and for that, I am sorry, ” Mr Cook said. 

“Western Australia is home to some of the world’s oldest known Aboriginal cultural heritage, we want to preserve this into the future, and ensure Western Australians can continue to live their lives and reach their full potential.

“We got the balance wrong, what we did hasn’t worked – it’s vital we manage cultural heritage in a common sense manner, so we can move forward together as a community.”

Western Australian Minister for Aboriginal Affairs, Tony Buti, said that the State Government has listened to the growing concerns of the community, taking the time to find a way forward that is fair, reasonable and responsible. 

“The Juukan Gorge tragedy occurred because new information about the caves was not disclosed and with our important amendments to the 1972 legislation, we will ensure it can never happen again.

“The Section 18 process will be strengthened – with these changes mainly impacting miners and Government, whose work most impacts cultural heritage.

“Also, our amendments to the 1972 Act, will expressly make it clear that ‘gag orders’ which constrain Traditional Owners will be unlawful.

“Australian Aboriginal culture is one of the world’s oldest continuing cultures dating back at least 60,000 years – cultural heritage is central to the health and vitality of Aboriginal communities – and these amendments to our existing laws will protect it forever,” Mr Buti said. 

Attorney-General for Western Australia, John Quigley, said, “For more than fifty years the Aboriginal Heritage Act of 1972 performed an important role to protect cultural heritage and with some simple amendments, we can be sure that heritage will be protected into the future and provide clarity and certainty for the whole community.

“By repealing the 2021 legislation it means all the extra burdens and obligations placed on landowners have now been removed.

“This means that all landowners, be they freehold, leasehold, licensee, invitee or citizen, at large have one simple obligation: that is to not knowingly damage an Aboriginal cultural heritage site, which has been the law since 1972.

“For the first time ever, Traditional Owners will have a right of appeal under Aboriginal cultural heritage laws in Western Australia.”

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