Disclaimer: The DPLH released some further draft ACH Regulations on 17 April 2023 relating to a variety of matters. Material omissions still remain. This article will be updated once more substantive information has been released. To ensure that you receive that update, sign up to our Native Title and Heritage mailing list here.

On the eve of the Easter long weekend, Minister Buti announced the publication of several guidelines to the new Aboriginal Cultural Heritage Act 2021 (WA) (ACHA).  The guidelines, which play a substantive role in making the ACHA functional, have been eagerly awaited ahead the ACHA’s purported 1 July 2023 commencement date.

While the final versions of the guidelines have addressed some stakeholder concerns arising from the co-design process, several key issues raised by knowledge holders and proponents persist.  As the ACHA mandates compliance with the guidelines, the practical difficulty of a legislative requirement to comply with a necessarily imprecise and non-legislative document is also apparent.

Further, the functional aspects of the guidelines do not seem to reflect the recommendations in the Juukan Gorge Report.  Perhaps this was to be expected as the ACHA does not purport to be aligned with those recommendations.  That said, the omission represents a missed opportunity to implement a truly modern framework ahead of inevitable Commonwealth intervention in Aboriginal cultural heritage management.

Although material details remain uncertain, we recommend proponents commence preparations to the extent they are able for the ACHA if they have not already done so.  We suggest that internal reviews be undertaken to ensure that agreements and standard operating procedures are fit for purpose. If they are not, early engagement with knowledge holders should occur. Please contact us for further information or assistance on preparing for the transition.

Key takeaways

• The guidelines reflect section 10 of the ACHA by setting a clear expectation that respect for Aboriginal Cultural Heritage (ACH) is to be prioritised in the conduct of activities on Country.  How that expectation is actually delivered by the ACHA framework is left wanting from knowledge holder and proponent perspectives;
• Due diligence assessments under the ACH Management Code can play a key role in alleviating operational issues, however material aspects of how those assessments are to be conducted remain unknown;
• The ‘like for like’ exemption applies to disturbance no greater than the existing surface area, height or depth;
• Extraction of basic raw materials from existing pits causing no increase to the area of existing disturbance will be a Tier 1 Activity;
• Meaningful and timely engagement with knowledge holders with respect to ACH awareness and understanding will be key;
• The lack of resources for LACHS and other knowledge holder groups has not been addressed and will likely result in an approval bottleneck given that LACHS have not yet been appointed ahead of the 1 July 2023 commencement;
• The statutory requirements to adhere to non-legislative documents results in a degree of uncertainty that is unsatisfactory having regard to the consequences for ACH and risk of contraventions.

We set out below some of the key aspects of the published documents, but note that this is by no means an exhaustive comment.

For further context on the prior versions of the below documents, please refer to our previous article Proposed guidelines to the Aboriginal Cultural Heritage Act 2021.

What was published and what are we still waiting for?

"Work will continue over the coming months to bring in a new IT system for the lodgement of applications, conduct a series of education and awareness sessions for landowners and stakeholders..." – Minister Buti 

ACH Management Code

The ACHA includes a new positive duty for proponents to conduct a due diligence assessment (DDA) prior to conducting activities.  The ACHA requires that a DDA is conducted in accordance with the ACH Management Code.  The purpose of a DDA is to determine whether:

• the proposed activity is in a protected area;
• there is any ACH located within an activity area;
• the activity should be carried out a manner that avoids a risk of harm to ACH so can proceed without further authorisation (such as using an alternative location or method);
• authorisation is required for the proposed activity, which may require:
  • taking reasonable steps to avoid or minimise harm;
  • an ACH permit ; or
  • an ACH management plan ; and
• engagement, and what type of engagement, with Aboriginal parties is required.

The ‘like for like exemption’ and comments on previously disturbed areas have been removed but instead appear in the activity categories document.  Also, the Code sets out that a DDA, depending on the proposed activities, will include a desktop assessment based on the ACH Directory, an ACH Investigation, identification of and consultation with knowledge holders in respect of the proposed activities, and an assessment of the risk of harm to ACH posed by those activities.  

The Code in many respects relies on making inquiries through the ACH Directory and / or direct advice from the DPLH.  There is no framework for contacting the DPLH for advice, and it may be built into the ACH Directory or the ACHKnowledge platform, but we imagine that given the likely volume of inquiries, there will need to be an appropriate communication framework.

Existing surveys can be relied upon for a DDA if they are consistent with the Survey Guidelines and cover the entire activity area.  Necessarily, future survey reports should also be sufficient for these purposes and should be compliant with the Survey Guidelines (if possible).

Without the Survey and ACH Investigation Guidelines being published at this stage, it is difficult to comment further (aside from agreeing with the DPLH that all steps taken for a DDA should be recorded in writing) on implementing a DDA in practice, as we expect heritage surveys will comprise a substantive component of many DDAs and formal approvals (if required). The omission of these two documents significantly diminishes the utility of the publication of the ACH Management Code.

That said, a robust DDA is a valuable opportunity for proponents and knowledge holders to build mutual trust and understanding.  Respectful communication, understanding and transparency at this early stage could lead to an ideal outcome for proponents and knowledge holders, as if the parties are able to devise an agreed method of work which poses no risk to ACH, then no further approvals will be required.  If that can be achieved then the parties will be well placed to negotiate a resolution of circumstances where interference with ACH cannot be avoided.

Activity Tiers Undergo Substantial Changes

The activities table released in phase three of co-design has undergone substantial changes.  The categories will be determined by the regulations, so this is not a final document per se, but it would be reasonable to assume there will be few changes before 1 July 2023, if any.

The like for like exemption has abandoned any reference to the type of previous disturbance and now only focusses on the extent of prior disturbance.  It appears that the exemption will apply for works that result in a land use or disturbance that is no greater than that prior, having regard to surface area, depth and height.  Further details on how this will be assessed will surely be welcomed by proponents and knowledge holders alike, as the potential consequences for a misapplication of that exemption could be severe.

A substantial addition is a regulation stating that extraction of basic raw material from existing pits in a way that does not involve an increase to the area of ground disturbance will be a Tier 1 Activity.  This would certainly alleviate some transitional concerns around operational continuity of productive mines.  Air core drilling and minor bore construction drilling is Tier 2, while most other drilling and mining activities will predictably be Tier 3.

Another addition is the ‘fall back’ regulation which deals with activities that suit more than one description.  In the case of such an overlap, the more specific description is deemed to be the appropriate designation.

Consultation Guidelines for ACH Management Plans

The consultation guidelines apply to the requirement to consult with knowledge holders when seeking an ACH Management Plan to authorise Tier 3 Activities. The guidelines acknowledge that the ACHA’s concept of ‘informed consent’ in s 146 falls short of free, prior and informed consent as recommended by the Juukan Gorge Report (and UNDRIP). Given the Commonwealth’s broad acceptance of all recommendations in that report and the foreshadowed reforms, WA proponents will be well placed to implement FPIC into their operating procedures.  In terms of content, details of the proposed activities and the potential impacts on Country must be shared by proponents in a complete, transparent and readily understandable manner. 

The Guidelines require an ‘initial contact’ period with the proponent making weekly attempts to make contact for four weeks, in addition to the provision of relevant information.  If no contact is made in that initial period, a further 10 weeks of trying to engage must occur.  There is some ambiguity in the guidelines over the exact time requirements for non-responsive parties.  We expect clarification on that point shortly.  If and when contact is made, then consultation should comprise a minimum of three meetings over a four-to-six-week period in which the proponent visits the site of the proposed activities to meet with knowledge holders and is also responsible for providing a venue.  There are similar arrangements already in place across WA so it will be familiar in that respect. However, there is a more formalized purpose of each meeting in providing information, an opportunity to respond to that information for knowledge holders, and then an opportunity for the proponent to respond in kind and demonstrate how the feedback was implemented. A successful consultation may result in the parties agreeing to terms of an ACH Management Plan, so the consultation process is very clearly a case of proponents getting out what they put in.

There is obviously a chance for substantial delays to occur throughout this process, but that risk seems material where the relevant persons are totally unresponsive. 

There is no guidance on how to conduct consultation where there are overlapping Native Title claims or otherwise different groups in an area. Where those circumstances are present, proponents should at this stage be prepared to manage multiple consultation streams or a consultation stream with multiple stakeholders (with potentially conflicting interests and or requirements).

The timeframes will be burdensome for LACHS who will be dealing with multiple proponents.  Unhelpfully, the guidelines acknowledge LACHS’ resource limitations but simply suggest that the LACHS take care to manage commitments.  Proponents should seek to build collaborative relationships with LACHS to navigate these early stages and assist where possible.

LACHS Fees

The fees set out parameters for the amounts chargeable by LACHS, with reference to certain positions and specific functions that those positions can charge for (having regard to the LACHS’ function in s 48 of the ACHA).  Those functions are also delineated according to the tier of activities being assessed.  On face value, the guidelines appear similar to common fee arrangements currently in practice, although the amounts reflect maximums.

The fee structure designates activities which are to be performed by different roles.  The fee amounts are determined having regard to the role, but are only chargeable by reference to the activity that was conducted.  For example, if a CEO conducts Heritage Officer designated tasks, then the CEO rate will not apply, but the rate for that particular task will.  All charges must be itemized in an invoice. 

Heritage professionals are now chargeable at ‘rates per professional standards’ instead of capped at $1500 per day.  The 15% administration fee remains on the basis that no administrative staff are charged out under the fee structure.  Aboriginal Consultant’s and Senior Aboriginal Consultants can attract daily fees between $600-$900 and $900-$1200 respectively.   LACHS Heritage Officers, responsible for day-to-day contact, ACH Investigations and liaising, are chargeable for the prescribed functions, in amounts up to $600-$1200 per day or $80-160 per hour.

The most jarring change to the fees schedule is that Aboriginal elders have been removed from the ‘expert service provider’ category, and appear to be subsumed into the ‘Senior Aboriginal Consultant’ category.  The maximum fee payable in the latter ($1200 per day) is nearly half that for an expert service provider ($2200 per day) or a LACHS CEO ($2100 per day), and such experts can include negotiation experts and heritage professionals.  The apparent commercial ‘downgrading’ of elders in this fee arrangement does not seem consistent with the principles of the ACHA and respect for cultural intellectual property rights.  It is generally acknowledged that those persons hold uniquely expert intellectual property which is crucial to the operation of the ACHA and any activities. 

Timeframes for ACH Permits and ACH Management Plans

There are no substantial changes to the proposed timeframes for obtaining ACH Permits and ACH Management Plans.  The former envisages a maximum timeframe of 70 calendar days from first notification to ACH Council approval.  ACH Management Plans provide 145 calendar days following notification to the relevant Aboriginal party to agree on the terms of the proposed plan. If the parties agree on a plan, the ACH Council has 28 days to approve that plan. If the parties are not in agreement, the proponent may apply to the Minister for approval, and the ACH Council has a further 90 days to decide what recommendation to make to the Minister. There is no compulsion for the Minister to act within any timeframe.

Knowledge holder (identification) guidelines

These guidelines apply where no LACHS has been appointed for an area, and so the proponent is required to identify the relevant knowledge holders themselves.  Steps to be taken include:

• searching the ACH Directory for listed knowledge holders, or reviewing heritage survey reports from the area to identify named knowledge holders;
• contacting the Native Title representative body for the area; and
• requesting DPLH provide the contact details of those persons identified.

There is no requirement to engage with knowledge holders if, following all of the steps in the guidelines, their contact details cannot be ascertained.

Further documents regarding the protection and management of ACH

The ACH Management Plan template and guidance notes sets out the framework for an ACH Management Plan. A number of the requirements are capable of being fulfilled by ACHA-compliant heritage agreements.  Please contact us if you would assistance updating agreements for this purpose.

The Protected Area Order guidelines set out the requirements for orders which appear to not have substantially changed.  The guidelines do note that how proponents are required to interact with protected areas will be determined by regulations.

Finally, the ‘substantially commenced’ guidelines elucidate the way in which the Minister may exercise their discretion to allow historic section 18 permits to continue beyond the 10-year sunset period triggered by the ACHA’s commencement.