Aboriginal Cultural Heritage Act 2021

The Aboriginal Cultural Heritage Act 2021 is a new way of protecting Aboriginal cultural heritage by giving Aboriginal people a much stronger say in managing their cultural heritage.

The Aboriginal Cultural Heritage Act 2021 (ACH Act) provides a modern framework for the recognition, protection, conservation and preservation of Aboriginal cultural heritage while recognising the fundamental importance of Aboriginal cultural heritage to Aboriginal people. 

View the Act on the Western Australian Legislation website

It is a significant step towards achieving equity in the relationship between Aboriginal people, industry and Government by replacing outdated Aboriginal cultural heritage laws and removing the controversial Section 18 approval process. Aboriginal cultural heritage in Western Australia will now be better protected by putting Traditional Owners at the heart of decision-making about the protection and management of their heritage, with the principles of free, prior and informed consent enshrined in the agreement making process.

Before the ACH Act comes into operation there will be a transitional period of at least 12 months during which the regulations, statutory guidelines and operational policies will be developed to ensure the ACH Act will have its intended effects. The transitional period will allow for the new Aboriginal cultural heritage management system to be fully established and to enable parties to prepare for the new system. 

During the transitional period the Aboriginal Heritage Act 1972 will remain in force to allow proponents to continue to seek section 18 consent for any activity that will impact Aboriginal sites. Any section 18 consents applied for and granted during this period will be limited to 5 years and will be subject to additional protection mechanisms, including the requirement to report new information about the existence or the characteristics of Aboriginal cultural heritage. 

Consultation and engagement with Aboriginal people and other stakeholders about the new Aboriginal cultural heritage regime will continue with a focus on the development of the regulations and statutory guidelines that are crucial to administering the ACH Act. Working throughout the regions and holding workshops with local people is our priority to make sure the new laws work for everyone.

There will be a co-design process for this important work. A first step in this process will be establishing a reference group with representatives from Aboriginal groups, State Government and industry to provide feedback and guidance on the consultation and co-design process. 

To keep up to date with all the latest news about the Aboriginal Cultural Heritage Act 2021, please email ACHimplementation@dplh.wa.gov.au.

Details on the Aboriginal cultural heritage reform can be found on The Aboriginal Heritage Act reform process page

Media statements

Historic law passed to protect WA's Aboriginal cultural heritage

The Bill

Aboriginal Cultural Heritage Bill 2021

Frequently Asked Questions

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Now that ACH Act has received Royal Assent, what is the timeframe for the new legislation to come into operation?

Implementation of the new legislation will be delivered in three stages:  

Stage 1 

Part 1 of the Aboriginal Cultural Heritage Act 2021 (ACH Act) came into operation on 22 December 2021 following Royal Assent. Part 1 includes the commencement clause, an overview of the proposed Act, the objects and principles of the proposed Act, terms used, and the interaction with other legislation.  

Certain sections of ACH Act will come into effect the day after Royal Assent (23 December 2021), these will amend Section 18 of the Aboriginal Heritage Act 1972 and introduce a five-year limit on any new section 18 consents applied for and granted after Royal Assent. 

A transitional period of at least 12 months will also commence the day after Royal Assent during which the regulations, statutory guidelines and operational policies will be developed to support the ACH Act, and new systems put in place.  

Stage 2

On a fixed date, at the end of the transitional period after the regulations, statutory guidelines and operational policies have been prepared:

  • The Aboriginal Heritage Act 1972 will be further amended to ensure its operation is limited to dealing with any unfinished land use applications made under that Act.
  • Almost all other sections of the ACH Act will be proclaimed.
  • The repeal of the Aboriginal Heritage (Marandoo) Act 1992 takes place.

Stage 3

The Aboriginal Heritage Act 1972 will be repealed six months after the commencement of Stage 2. This marks the end of the transition period and, more significantly, the end of approvals under Section 18 of the Aboriginal Heritage Act 1972.

What is the transitional period? 

The transitional period commenced on 22 December 2021 - the day the Aboriginal Cultural Heritage Act 2021 received Royal Assent – and ends on the date that the repeal of the Aboriginal Heritage (Marandoo) Act 1992 takes place under Part 14 Division 1. This will occur at the same time as when Part 15 Division 3 of the Aboriginal Cultural Heritage Act 2021 comes into operation, which provides that the Aboriginal Heritage Act 1972 is further amended to ensure its operation is limited to dealing with any unfinished land use applications made under that Act. This is referred to as ‘transition day’.  It is intended that the transition day date will be fixed after the regulations, statutory guidelines and operational policies have been developed. 

The transitional period will be at least 12 months.

What is the purpose of the co-design process?

There has been substantial public interest in updating the Aboriginal cultural heritage legislation in Western Australia, and the Aboriginal Cultural Heritage Act 2021 is the result of extensive consultation. It is important to ensure that the regulations and statutory guidelines are given due consideration. The Government is cognisant that these documents, as well as the regulations are critical for the effective implementation of this legislation and is committed to a co-design process with all stakeholders.

What are the specific timeframes for the development of the regulations and statutory guidelines and for the co-design process?

The Department is in the process of establishing a reference group to inform and guide the co-design and consultation process. Core membership of the reference group is to comprise of two Traditional Owners (one male and one female), a representative from State Government, and an industry representative. The reference group will be responsible for developing a framework for, and coordinating consultation and engagement with, the Aboriginal community and other stakeholders, including convening state-wide workshops to support the co-design process between March 2022 and April 2023.

More details will be made available as soon as the reference group has been established.

How do I get involved in the co-design process? 

If you are interested in participating in the consultation and engagement process for the development of key regulations and statutory guidelines, please email achimplementation@dplh.wa.gov.au.

When will the Aboriginal Cultural Heritage Act 2021 come into force? 

Before the Aboriginal Cultural Heritage Act 2021 comes into operation, there will be a transitional period of at least 12 months during which the regulations, statutory guidelines and operational policies will be developed to ensure the ACH Act will have its intended effects. 

Does the Aboriginal Heritage Act 1972 still apply? 

The Aboriginal Heritage Act 1972 will continue to apply during the transitional period. This means that a land user looking to undertake an activity that will harm an Aboriginal site is required to apply for a section 18 consent

During the transitional period persons must still seek a Regulation 10 consent to undertake any activity that is prohibited under Regulation 10 of the Aboriginal Heritage Regulations 1974 within a Protected Area or Aboriginal site; or a Section 16 authorisation to enter an Aboriginal site and excavate, examine or remove anything on or under the site.

What happens to Section 18 approvals already granted before the Aboriginal Cultural Heritage Act 2021 comes into operation?

The Aboriginal Cultural Heritage Act 2021 (ACH Act) recognises section 18 consents issued under the Aboriginal Heritage Act 1972

  • A section 18 consent granted where the notice was received by the Aboriginal Cultural Material Committee prior to 22 December 2021 will be known as an historical AH Act section 18 consent
  • A section 18 consent that is requested and granted between 22 December 2021 and the repeal of the Aboriginal Heritage Act 1972 will be referred to as a transitional AH Act section 18 consent

The ACH Act provides that where projects or activities subject to an historical AH Act section 18 consent have not substantially commenced, the approval will expire at the end of the period of 10 years following the ACH Act coming into effect. This provides sufficient time for land users to negotiate new agreements with Traditional Owners and undertake a revised assessment of cultural heritage values in the area. The only exception will be if the purpose for which the approval was issued has been determined by the Minister for Aboriginal Affairs to have been substantially implemented, in which case it will continue in accordance with its original terms and will be in force until the stated purpose has been completed.

Transitional AH Act section 18 consents will be valid for five years only. These approvals can be extended for another five years for projects that the Minister for Aboriginal Affairs considers to be of State significance. 

Do the new penalties under the Aboriginal Cultural Heritage Act 2021 apply now? 

No. The penalties for unauthorised harm under the Aboriginal Heritage Act 1972 will still apply until the offence provisions under the Aboriginal Cultural Heritage Act 2021 are proclaimed. This is likely to occur on transition day – being the day when the repeal of the Aboriginal Heritage (Marandoo) Act 1992 takes place under Part 14 Division 1. 

What are the benefits of the Aboriginal Cultural Heritage Act 2021?

The ACH Act presents a transformative and contemporary vision for the management of Aboriginal cultural heritage in Western Australia. It places Aboriginal cultural heritage centre stage to appreciate its importance to Aboriginal people and the wider community, and to preserve its value for generations to come. It also removes the controversial ‘one size fits all’ approvals system under Section 18 of the Aboriginal Heritage Act 1972

The ACH Act will establish a new system that requires land users to negotiate agreements with Traditional Owners for any activities considered medium to high ground disturbance that may harm Aboriginal cultural heritage. The new laws also include a statutory requirement for Aboriginal people to be consulted or notified for certain activities. Activities involving minimal or low ground disturbance will benefit from a streamlined approval pathway, encouraging proponents to avoid or minimise impacts.

Other provisions to improve protection of Aboriginal cultural heritage include:

  • A role for Aboriginal people in the management of their heritage, through the establishment of local Aboriginal cultural heritage services.
  • Creation of a new Aboriginal Cultural Heritage Directory to record places and objects.
  • A process to afford the highest level of protection for Aboriginal cultural heritage of outstanding significance, through the declaration of Protected Areas.
  • The requirement for new information about the existence or characteristics of Aboriginal cultural heritage to be reported, and the ability to issue stop activity orders, prohibition orders and remediation orders to prevent harm.
  • Harsher penalties of up to $10million or five years imprisonment for offences of serious harm.

A breakdown of the differences between the ACH Act and the Aboriginal Heritage Act 1972 have been summarised in a Fact Sheet.

What will happen to the current Register of Aboriginal Places and Objects?  

The Register of Aboriginal Places and Objects will be replaced by the Aboriginal Cultural Heritage Directory. All registered Aboriginal sites will be transferred to the new directory.  Lodged places waiting for assessment by the Aboriginal Cultural Material Committee under Aboriginal Heritage Act 1972 will also be added to the Directory as Aboriginal cultural heritage.

How do I report Aboriginal heritage during the transitional period?

The requirements to report Aboriginal sites under section 15 of the Aboriginal Heritage Act 1972 still applies. 

To provide information about a possible Aboriginal Site please use the Heritage Information Submission Form. This can also be used to provide additional information about a registered Aboriginal site or other heritage place.

Regulatory Impact Assessment Compliance Assessment Notice

Regulatory Impact Assessment Compliance Assessment Notice

Fact sheets

Short Summary of the Aboriginal Cultural Heritage Bill
Detailed Overview of the Aboriginal Cultural Heritage Bill
Short Summary: Aboriginal Cultural Heritage Bill 2021 - Tiered Assessment Process
Aboriginal Cultural Heritage Bill: Changes following 2020 Bill Consultation

Comparisons

The Aboriginal Heritage Act 1972 v. Aboriginal Cultural Heritage Bill
Section 18 process [1972 Act] v. Aboriginal Cultural Heritage Bill
Registration [1972 Act] v. Aboriginal Cultural Heritage Bill

User journeys

Prospector wanting to peg a tenement explore and extract material
Local Government Authority wanting to rehabilitate a coastal dune
Page reviewed 20 January 2022