Aboriginal Heritage Legislation Update - November 2023
With the repeal of the Aboriginal Cultural Heritage Act 2021 (ACH Act) today, the amended Aboriginal Heritage Act 1972 (the Act) comes into effect supported by amended regulations, guidelines, and online mechanisms.
The Department of Planning, Lands and Heritage (DPLH) have released guidelines to assist landowners in determining whether an application is required and the process that needs to be followed. Consultation with Traditional Owners and Knowledge Holders continues to be a crucial component of the legislation, particularly in relation to applications for a Section 18 consent. Traditional Owners and Knowledge Holders are a primary source of information and are best placed to advise on how a proposed activity may impact their heritage.
Element Advisory will continue to provide heritage advisory services to proponents in this space, including regulatory approvals, consultation and engagement with Traditional Owners, Knowledge Holders and Right Holders. If you have questions about how this change in legislation may impact your property or development proposal, reach out.
Key points from the Act, regulations and guidelines include:
- There are no activities considered exempt under the restored Aboriginal Heritage Act 1972.
- Section 16 and Section 18 applications will attract a $250 fee for individuals, small businesses, and not-for-profits.
- All applications can be lodged through a dedicated portal for Aboriginal heritage - the ACHknowledge Portal.
- Prior to submitting a Section 18 application, proponents are encouraged to contact the Department of Planning, Lands and Heritage to seek advice and determine if an approval is required.
- Statutory time frames commence on submission of a Section 18 application.
- From instigation of a (complete) Section 18 application, the Aboriginal Cultural Heritage Committee has 70 days to make a recommendation to the Minister, with an option for a 30-day extension. The Minister has 28 days to make a decision on receipt of the Committee’s recommendation.
- Where there is a change in ownership of land subject to a Section 18 consent, the new owner is required to notify the Minister and the consent will be transferred.1
What Happens to Approvals Given under the Aboriginal Cultural Heritage Act 2021?
Permits or management plans issued under the ACH Act will automatically transition to a current Section 18 consent. Some activities carried out under the ACH Act are still valid, including those that were authorised, were considered exempt, did not require approval, or where a determination was made that there was no risk of harm.
Next Steps
Over the next 10 years, the State Government has committed to a long-term plan to fund and undertake Aboriginal heritage surveys. With the consent of landowners, and in consultation with Aboriginal people, surveys will be done in high priority areas. An initial audit will be undertaken against approved section 18 consents to identify gaps in survey data.2 The survey program is still in development, with updates and further details on eligibility to be confirmed when available.
