What you need to know about the Aboriginal Cultural Heritage Act

What is the purpose of the Aboriginal Cultural Heritage Act?

A key function of the Aboriginal Cultural Heritage Act 2021 (the Act) is to manage activities that may harm Aboriginal cultural heritage, such as mining, farming practices and property development.

When does it come into effect?

1 July 2023.

Is my property affected?

If you own a property under 1,100sqm your property is not affected by the Act.

If you own a residential or rural property 1,100sqm or greater you are subject to the Act.

My property is over 1,100sqm, what does ‘subject to the Act’ mean?

It means you need to take due care not to harm areas of Aboriginal cultural heritage if you develop your property.

The first step is to check if your property is in a cultural heritage area. Many residential properties that are 1,100sqm or greater are not, and therefore you would not need to undertake the additional requirements for approval under the Act.

If your property is in a cultural heritage area and you plan to live in your property and do nothing, you are not required to do anything under the Act.

However, if at any point you plan to do some development you will need to check if the activity is exempt or carry out a Due Diligence Assessment (DDA) to ensure your plans do not affect Aboriginal cultural heritage. If they do, you may be required to adjust your plans to minimise the risk of harm, get a permit or a management plan.

The Government has developed a three-tiered system to help residential and rural property owners determine the necessary steps to take.

How can I check if my property is in a cultural heritage area?

Here are two links that will help you get an idea of whether your property in in a cultural heritage area or not.

www.nationalmap.gov.au and search the catalogue for Aboriginal Heritage Places.

Find Aboriginal cultural heritage in WA.

Remember, if your property is in a cultural heritage area, but under 1,100sqm you are not affected by the Act.

What activities are exempt?

The Act includes a range of exemptions.

Many activities relating to residential properties are exempt. According to the Government, these include building a home, general maintenance and maintaining existing water, electricity and other services infrastructure, as well as installing a patio, granny flat, pool, carport, veranda or deck.

People undertaking like-for-like activities – such as farmers working on established paddocks in a way they have been previously – are exempt.

Where new works are planned on large properties, property owners are required to check for Aboriginal cultural heritage before commencing works. For example, amalgamating blocks and building villa-style housing is considered a Tier 2 activity and requires a permit if in a cultural heritage area.

The need for approval only applies where Aboriginal cultural heritage is present in the area, and it is not possible to avoid impact or harm.

Are there penalties?

Penalties for damaging a cultural heritage site range from $25,000 to $1 million for individuals and $250,000 to $10 million for corporations, as well as imprisonment.

While property owners and pastoral landholders adjust to the new system, the State Government has said it will adopt a responsible, reasonable and education-first approach to compliance for the first 12 months - similar to the approach being taken for implementation of WA's new work health and safety laws.

What does the Act mean for buyers?

Under the statutory Code of Conduct, real estate agents have an obligation to tell prospective buyers about all facts material to a transaction. The Act becomes a material fact when a property is 1,100sqm or greater, and agents must inform potential buyers if a property is subject to the Act. They do not need to tell you if the property is exempt or whether any prospective plans you have for the property will require a DDA. It is up to you to do your own due diligence into whether your plans would be allowed under the Act. 

As mentioned previously, in many cases activities are likely to be exempt, but it is recommended that buyers and owners seek advice before undertaking any development.

What does the Act mean for sellers?

If you are selling a residential property or block of land 1,100sqm or greater that is being marketed for potential subdivision, or a property such as a farm, vineyard or lifestyle acreage, you may want to check if the property is exempt under the Act. You are under no obligation to do so, but it may expedite the sale if buyers know a property is exempt.

On the other hand, if you know your property is not exempt, providing this information to buyers so that they can do due diligence before deciding whether to make an offer, could avoid potential issues later.