Proposed guidelines have been released for comment ahead of the third and final round of co-design workshops for the Aboriginal Cultural Heritage Act 2021 (WA) (ACHA). The finalised guidelines, along with the unreleased ACHA Regulations, comprise the substance of how the ACHA will work in practice to protect Aboriginal Cultural Heritage (ACH). We briefly set out some of the key takeaways, the underlying theme of which is that parties will need to be well-prepared in advance of the ACHA commencing. For more detailed advice, contact our team below.

Co-design workshops are being held around the State during November. G+T will again be engaging in the process and continue to provide updates as they become available. According to the latest government advice, the ACHA is expected to commence July 2023, with the Regulations Gazetted in late February 2023.

Aboriginal Cultural Heritage Management Code

The ACHA introduces a positive requirement to undertake a due diligence assessment (DDA) in accordance with the ACH Management Code (Code) prior to proposed Tier 1-3 Activities. Among other things, a DDA determines what steps a proponent needs to take prior to undertaking a given activity. Having done a DDA properly may also comprise part of a defence to an offence under the ACHA.

The proposed Code sets out five steps of a DDA:

1. confirm whether the activity is located within a protected area;
2. confirm whether the activity is exempt and, if not, the activity tier of the proposed activity;
3. assess whether ACH is or is likely to be located in the proposed activity area;
4. assess if there is a risk of harm to ACH by the proposed activity; and
5. identify the persons to be notified or consulted about a proposed Tier 2 or a Tier 3 activity.

Alternative to approvals

Much of the practical details of a DDA will depend on the particular activity and location.

Early and meaningful engagement with knowledge holders is a central aspect to best practice operations, legislative compliance and operational efficiency. The Code also contemplates that DDA’s which result in an agreement with knowledge holders to allow proponents to alter proposed activities to avoid risk of harm to ACH do not need any further approval. Pragmatic engagement from parties therefore offers potential relief from delay or constraints in obtaining ACH Permits or Management Plans.

Existing ground disturbance

The Code introduces two new defined terms – ‘new and additional disturbance’ and ‘like for like’ activities. If a proposed activity is ‘like for like’ (as compared to a prior disturbing activity) and does not cause ‘new and additional disturbance’, the Code states that such activities will be exempted from the DDA process by the ACHA Regulations.

Social surrounds and ACH Management Plans

The proposed guidelines also include a template ACH Management Plan – the approval required for Tier 3 activities that may harm ACH. The template is not particularly prescriptive in that it primarily sets out the broad substance of what should be included, rather than how it should be included. The template resembles those currently found in Heritage Agreements and survey reports.

The Code includes a recognition that some Tier 3 activities may trigger the significant proposal regime in the Environmental Protection Act 1986 (WA). The Code states that a DDA and resulting ACH Management Plan may be considered by the EPA as sufficiently mitigating potential impacts of the proposal on social surroundings. The Code does not provide recognition of this approach from the EPA itself and it will remain to be seen whether DPLH is correct in their assessment that the processes under the EPA will, in practical terms, satisfy the EPA’s requirements.

Existing surveys

Existing surveys may be used to satisfy some aspects of DDAs.

However, such surveys must be compliant with the (presently unreleased) Survey Guidelines. We expect as a minimum, reliance on existing surveys will be possible where all correct knowledge holders were consulted and contributed to the survey results. To the extent that intangible ACH and all knowledge holders are not covered by a survey, there will need to be additional work.

Activity Tier Categories

The activity categories proposed as part of the phase two co-design process have been expanded upon. Notably, ‘diversification of land use that is not like for like or less’ is introduced as a Tier 3 Activity, likely referencing the imminent introduction of the new form of land tenure, Diversification Leases.

The new table also provides some quantitative measures for determining the tier of general clearing and excavation works by reference to depth and scale. Some activities (such as infrastructure works in both water and on land and management of existing ACH or historical object) appear to have been upgraded from Tier 2 to Tier 3.

Those changes might reflect the difficulty of distinguishing between Tiers 2 and 3 that some proponents have raised, and the potential risks associated with a prescriptive, yet necessarily general approval framework.

Local Area Cultural Heritage Services Fees for Services Guidelines

Local Area Cultural Heritage Services (LACHS) are intended to be the primary interface for proponents under the ACHA.

Significant burden is placed on LACHS by the ACHA’s framework. The policy of the ACHA is to offset the costs of LAHCS by setting up a ‘fee for service’ model. In this regard, Fees for Services Guidelines regulate how LACHS may charge fees. These guidelines only apply to entities appointed as LACHS pursuant to the ACHA.

Notably, the guidelines not only regulate how much can be charged, but also what tasks can be charged for and by whom. The guidelines point to section 48 of the ACHA (LACHS’ functions) as the basis for the ability to charge for a given task. This obviously suggests any activity straying beyond the legislative functions is not covered, but also potentially creates risk by requiring legislative interpretation by non-judicial entities.

The Guidelines set out three roles that can charge for services – LACHS Heritage Officer (LHO), LACHS Senior Heritage Officer (LSHO) and Expert Service Provider (ESP) such as Elders, legal and heritage professionals.

The approved fees range from $100 per hour for LHOs to $2,000 per day for ESPs. Heritage professionals are capped at $1500 per day, while legal professionals’ rates are limited by the Legal Profession (Solicitors Costs) Determination. Administration fees are set at 15% and there is a 10 hour per day cap for services with hourly rates, with out of pocket expenses to be determined at cost plus GST or according to relevant ATO allowance rates.

LACHS may approach the ACH Council to have fees exceeding the guidelines approved but will need to demonstrate complexity or urgency.

Consultation and Knowledge Holder guidelines

The Consultation and Knowledge Holder Guidelines are concerned with genuine and meaningful engagement in a cross-cultural context. The Knowledge Holder Guidelines establish persons or groups to contact where the primary entities are not existent or responsive. LACHS are the first point of contact, in the absence of which proponents should seek advice from Native Title Parties and Registered Native Title Bodies Corporate, local Aboriginal groups, or in the last instance, the DPLH. For areas with multiple knowledge holders, each will need to be consulted and notified as required by the ACHA.

The Consultation Guidelines set out several requirements proponents need to demonstrate compliance with. In this respect, documentation of all processes and attempts to consult is a necessary risk management tool.

There are timeframes for consultation that could impact operations for some proponents, especially junior explorers. Those timeframes may be shortened by agreement between the parties, but it is difficult to see a circumstance where that would occur short of entering a full agreement. Obviously, and perhaps more so than presently, early engagement and forward-planning will be necessary for proponents to minimise operational impact.

In addition to timeframes, proponents must also consider the form in which information is delivered throughout the consultation process to ensure such consultation is meaningful for all parties. Readily understandable information about the proponent’s project will also be relevant to the requirement to have obtained knowledge holders’ informed consent for ACH Management Plans pursuant to s 146 of the ACHA.

Prescribed timeframes

There have not been significant changes to the approvals timeframes.

Parties negotiating an ACH Management Plan by consent now have 100 business days (or more by agreement) to reach agreement before the ACH Council can become involved. For parties unable to reach agreement, the timeframe for the ACH Council to make its recommendation to the Minister has been shortened from 120 to 60 business days. ACH Permits now contemplate a maximum 50 business days for approval. However, the ACH Council may ‘stop the clock’ on these timeframes if it requests further information.

These timeframes again highlight the need to plan ahead, especially in light of the burden that LACHS will carry without further resourcing.

Protected area orders

Protected area orders have the effect of excluding activities from a given area that has outstanding significance. Only knowledge holders may apply for a protected area order. If an area is subject to an order, it cannot be accessed by proponents unless in accordance with conditions set out by the order (if any) or in accordance with the Regulations.

Applications are made to the ACH Council which must form a view and make a recommendation to the Minister with reference to the following factors:

• Community health –the ACH is central to the ongoing wellbeing of Aboriginal people, particularly where there is a traditional obligation to prevent harm to the ACH;
• Sacred – including Dreaming places and ceremonial grounds;
• Educational potential – protection is required to ensure generational education or more widespread education resulting in increased awareness, understanding and appreciation of ACH;
• Contemporary usage – where the cultural value of an area remains through customs and traditions;
• Enhancing knowledge – the potential to generate research outcomes that benefit Aboriginal people and to help further the understanding of Country and Culture;
• Uniqueness or rarity of ACH within its context; and
• Protection into the future – where the ACH has already been degraded and protection is needed for preservation.