Essential Considerations for Landowners regarding Aboriginal Heritage Sites

Introduction

Western Australia’s Aboriginal heritage laws have received significant public attention in recent years. Despite attempted reforms, the primary legislative framework affecting landowners today remains the Aboriginal Heritage Act 1972 (WA) (AH Act).

For landowners and developers, the AH Act imposes several important obligations when undertaking activities that may affect Aboriginal heritage sites.

Who is a “landowner”

Within the AH Act, a Landowner is “the owner of any land” and includes any lessee from the Crown and the holder of any mining tenement or mining privilege (Landowner)[1].

The definition of Landowner also encompasses individuals holding rights or privileges under the Petroleum and Geothermal Energy Resources Act 1967[2], as well as holders of rights under the Dampier to Bunbury Pipeline Act 1997 and those with authority under the Petroleum Pipelines Act 1969 to enter upon the land[3].

Holders of energy distribution licences under the Energy Coordination Act 1994 or water service licences under the Water Services Act 2012 are also considered Landowner’s within the AH Act.[4]

The mandatory duty to report findings

One of the most immediate obligations for any Landowner is the requirement to report the discovery of potential heritage. If a Landowner has knowledge of anything in the nature of Indigenous significance, such as burial grounds, sacred objects, rock paintings, or stone structures, they must report it to the Registrar of Aboriginal Sites (Registrar) or a police officer.[5]

Prohibited actions and the consent process

It is prohibited to excavate, destroy, damage, conceal, or in any other way alter an Aboriginal site without specific authorisation.[6] If a proposed land use is likely to result in a breach of these protections, the Landowner must initiate the process under section 18 process of the AH Act:

1. Notice of intent – the Landowner must provide written notice to the Aboriginal Cultural Heritage Committee regarding the intended use of the site.[7]

2. Evaluation – the Aboriginal Cultural Heritage Committee (Committee) – a State-established body responsible for evaluating the importance of Aboriginal places and objects and advising the Minister on their preservation – evaluates the site’s importance and significance before submitting a recommendation to the Minister.[8]

3. Ministerial decision – the Minister makes the final determination to either consent to the land use (often with conditions) or to decline it, weighing the proposal against the general interest of the community.[9]

If the Landowner is aggrieved by the Minister’s decision, they may apply to the State Administrative Tribunal (SAT) for a review.[10] However, the Premier may call in and determine SAT applications if they raise issues of State or regional importance.[11]

Accounting for native title rights

Landowners must recognise the legal standing of native title parties associated with the land. These native title parties have the right to seek a review of Ministerial decisions regarding land use.[12] Importantly, the law ensures that native title parties cannot be contractually barred from participating in these proceedings or making submissions.[13]

Ongoing compliance – new information and transfer

Consent given under section 18 of the AH Act is not necessarily permanent or static. Landowners are subject to a mandatory condition to notify the Minister if any new information about an Aboriginal site on that land comes to light.[14]

If new information is obtained, the Minister has the authority to amend, confirm, or even revoke the original consent.[15]

Protected areas and voluntary covenants

Sites of outstanding importance may be declared protected areas by the Governor.[16] In such cases, the exclusive right to occupy and use the site vests in the Minister.

If a Landowner’s interest is prejudicially affected by this, they are entitled to reasonable compensation.[17]

Alternatively, Landowners can take a proactive approach by entering into a voluntary covenant with the Minister. These agreements can permanently or temporarily restrict development to preserve a site and generally bind all future successors in the title.[18]

Special defence – lack of knowledge

It is a defence to any offence under the AH Act if a Landowner did not know, and could not reasonably have been expected to know, that their land was protected under the AH Act.[19]

[1]Aboriginal Heritage Act 1972 (WA), s18(1).

[2]Aboriginal Heritage Act 1972 (WA), s18(1).

[3]Aboriginal Heritage Act 1972 (WA), s18(1a)(a)(i)-(ii).

[4]Aboriginal Heritage Act 1972 (WA), s18(1a)(b)-(c).

[5]Aboriginal Heritage Act 1972 (WA), s15.

[6]Aboriginal Heritage Act 1972 (WA), s17.

[7]Aboriginal Heritage Act 1972 (WA), s18(2).

[8]Aboriginal Heritage Act 1972 (WA), s18(2).

[9]Aboriginal Heritage Act 1972 (WA), s18(3).

[10]Aboriginal Heritage Act 1972 (WA), s18(5).

[11]Aboriginal Heritage Act 1972 (WA), s18A.

[12]Aboriginal Heritage Act 1972 (WA), s18(5).

[13]Aboriginal Heritage Act 1972 (WA), s18(5A).

[14]Aboriginal Heritage Act 1972 (WA), s18(6).

[15]Aboriginal Heritage Act 1972 (WA), s18(6A).

[16]Aboriginal Heritage Act 1972 (WA), s19(1), (3)-(4).

[17]Aboriginal Heritage Act 1972 (WA), s22(2).

[18]Aboriginal Heritage Act 1972 (WA), s27(1)-(2).

[19]Aboriginal Heritage Act 1972 (WA), s62.