The reform of the Aboriginal Heritage Act 1972 is one of the most significant developments impacting land use in Western Australia, requiring proponents and landowners to reflect on and carefully consider the implications of a project on heritage issues.
As corporate governance and social responsibility come under greater scrutiny, the complexities of the updated legislation have become critical for boards of companies with projects in Western Australia to address. Adapting governance frameworks to meet these changes is essential for avoiding operational risks, costly delays and damage to reputation.
Legislative Changes: Essential Knowledge for Corporate Boards
The amendments to the Aboriginal Heritage Act were introduced to modernise an outdated framework and better protect Aboriginal cultural heritage by involving traditional owners more actively in the approval process. The amendments introduce stricter consultation requirements and more rigorous due diligence processes, while encouraging a collaborative approach to future land management.
For corporate boards, this means heightened accountability.
Companies must align their operations with the new legal requirements as well as their broader Environmental, Social, and Governance (ESG) obligations.
Western Australian law firm Lavan specialises in legal and strategic advice concerning native title, Aboriginal cultural heritage, and First Nations matters. Their team also assists landowner, developer and proponent clients in developing stakeholder engagement strategies and navigating compliance with Indigenous Land Use Agreements (ILUAs), Noongar Standard Heritage Agreements (NSHAs), and mining and heritage agreements relevant to heritage matters.
Lavan’s comprehensive approach ensures clients meet both legal obligations and cultural sensitivities, recognising that strong partnerships with traditional landowners are key to project success. Craig Wallace, Lead Partner in Lavan’s Planning and Environment team, explains, “Particularly when dealing with Indigenous Land Use Agreements and the new requirements for consultation under the Aboriginal Heritage Act, we emphasise the importance of cultivating relationships with stakeholders from the outset.”
In line with this, a key component of Lavan’s practice is the creation of a legal hub for Aboriginal and Torres Strait Islander peoples to access the services of a corporate law firm. Mr Wallace says, “In doing so, we can also help companies connect with Native Title parties and Traditional Owners, establishing meaningful engagement for both parties.”
Key Implications for Mining, Energy and Land Development
In sectors like mining and clean energy, where land access and project approvals are critical, the recent amendments may create significant hurdles. Delays in securing approvals can be financially damaging, especially when failures in due diligence or consultation lead to legal disputes or a loss of community trust and support.
The amended Aboriginal Heritage Act requires that companies engage more extensively with Aboriginal communities. Consultation protocols now require detailed evidence of engagement, including correspondence with Native Title parties, heritage survey reports and even meeting minutes. This presents an administrative challenge that many corporate boards have yet to fully integrate into their governance practices.
As Lead Practitioner of Lavan’s Native Title and First Nations team, Jessica Pollock is well-placed to guide companies through these complexities. Her background includes in-house Representative Body experience, where she took instruction, negotiated on behalf of, and advocated for First Nations people.
Ms Pollock stresses the importance of early engagement: “Upfront advice during the feasibility stage is crucial. We help clients navigate regulatory obligations and build long-term relationships with Native Title stakeholders, mitigating risks as projects develop.”
Balancing Corporate Strategy with Compliance
Companies that neglect their obligations under Native Title and Aboriginal Heritage legislation risk reputational damage and operational setbacks, particularly those with publicly stated ESG commitments. Inadequate ESG compliance can lead to significant market consequences, as evidenced by several ASX-listed companies announcing project delays due to poor internal reporting mechanisms.
To avoid this risk, Ms Pollock emphasises that “the preparation of cultural heritage management plans, thorough consultation processes, and training are now essential components of good governance.” Boards that invest in cultural competency training are not only better positioned to comply with the new legislative amendments but also to uphold best practices, ensuring that their governance frameworks effectively address legal requirements.
The Future of Governance in Native Title Compliance
Corporate boards now face a delicate balancing act: ensuring projects align with the law, cultural heritage preservation, community expectations, and their own corporate goals. From a strategic perspective, there is no quick-fix solution.
“That’s the million-dollar question,” says Ms Pollock. “But we are at the beginning of a mindset shift in the industry, moving from viewing Aboriginal heritage as a tick-box exercise at the end of a due diligence process, to an engaged and purposeful examination of prospective projects.”
“It’s about incorporating voices that hold relevant knowledge into the planning framework and communicating them in a way that resonates with both Western and traditional perspectives, ensuring project success from the beginning.”
