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WA Aboriginal Cultural Heritage legislative framework

On 9 August, the WA State Government introduced to Parliament the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 to amend the Aboriginal Heritage Act 1972 (1972 Act) and repeal the Aboriginal Cultural Heritage Act 2021 (2021 Act).

The next step to progress this is for the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 to be debated in the Legislative Assembly, and that is expected in the week of 11 September.  Unusually, the regulations are anticipated to be tabled concurrently with that debate. Regulations are normally drafted after the legislation has passed parliament, in a separate process. However, following the difficulties with the 2021 Act the Government has sought to increase the transparency of the legislative process through a concurrent release of the regulations.

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July 2023

Aboriginal Cultural Heritage reforms look back to go forward

Today, the Premier of Western Australia, Hon Roger Cook MLA, confirmed reports that the WA State Government would scrap the new Aboriginal Cultural Heritage Act 2021, and return to the previous Aboriginal Heritage Act 1972 making modest but important amendments.

These amendments will ensure that events such as the destruction of Juukan Gorge can never happen again. 

The amendments are:

  • 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; and

  • When a Section 18 has been approved, it will be a requirement for the owner to notify the Minister of any new information about an Aboriginal site.


“The mining and mineral exploration industry has endeavoured to work with Government and traditional owners to ensure that the newly minted framework would work in operation,” said AMEC Chief Executive Officer, Warren Pearce.

“When it became clear that this was not the case, and that all involved were struggling with the complexity of the new requirements, we realised that a new approach was needed.”

“Government has heard this message and is responding to industry and community concern.”

July 2023

Marking out land pre-condition for mining tenement applications

The Department of Mines, Industry Regulation and Safety (DMIRS) is seeking public comments on its proposed Position Paper 14 – Marking out the land a pre-condition of making certain tenement applications – The Mining Registrar’s obligation to consider jurisdiction.

The Position Paper was developed following a decision by the Supreme Court of Western Australia in Forrest & Forrest Pty Ltd v O’Sullivan & Ors [2020] WASC 468 (Forrest 2020 decision) delivered on 16 December 2020, which ruled that: ‘marking out in the prescribed manner and in the prescribed shape is an essential precondition to the warden’s jurisdiction to determine an application for a prospecting licence’.

Position Paper 14 outlines that evidence should be provided by the person who marked out the land that marking out was done in strict compliance with the Mining Act 1978 and Mining Regulations 1981.

This evidence will assist Mining Registrars to establish that they have the jurisdiction to consider the application.

The Position Paper states that if the Mining Registrar is not satisfied that the evidence provided is in strict accordance with the provisions of the Mining Act 1978 and Mining Regulations 1981, the application will be invalid.

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July 2023

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