What property owners should know about WA’s Aboriginal Cultural Heritage Act
Western Australia’s laws to protect Indigenous sites of cultural importance come into effect on 1 July 2023, and they might change what some property owners can do with their land.
As the Real Estate Institute of Western Australia (REIWA) explained, this law only applies to properties 1,100 square metres or larger, and there are a lot of exemptions for private alterations on properties of that size.
Broadly, what it aims to do is ensure that Aboriginal history is preserved on sites that lie within designated cultural heritage areas. It’s important that property owners know if their property is located in a heritage area, and for real estate agents to know if they’re dealing with property to which this law applies – this is considered a material fact, and it’s an agent’s job to ensure buyers know if this law applies to a property that’s up for sale.
Many activities are exempt, such as building a home, general maintenance and maintaining existing infrastructure, as well as installing a patio, granny flat, pool, carport, veranda, or deck. Farmers working on established paddocks in a way they have been previously are also exempt.
For certain activities, however, property owners are subject to greater regulation, depending on the type of work they’re undertaking.
The state government has come up with a three-tiered system to determine the level of oversight that a non-exempt activity might need. Tier one involves no or minimal ground disturbance, tier two involves low ground disturbance, while a tier three activity may cause moderate to high ground disturbance.
It’s the responsibility of anyone carrying out work on a property to conduct a due diligence assessment to ensure Indigenous heritage is not being disturbed.
Amalgamating blocks and building villa-style housing is an example of a tier two activity that would require a permit if located in a cultural heritage area. Subdividing land is among a number of tier three activities that require an approved plan before proceeding.
Agents do not need to advise potential buyers if a property or activity in a cultural heritage area is exempt from the law, or whether certain projects might require a permit or authorised plan. It’s up to buyers to do their due diligence, so long as they are given the information that the property lies in an area subject to these controls.
Failure to comply with the law carries some stiff 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.
REIWA reported that in the first 12 months, 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, similar to the approach the state is taking for its new work health and safety laws.
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