Substantial changes are coming with respect to the management of Aboriginal cultural heritage in Western Australia, which will place more obligations on proponents working in culturally significant areas. The new Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) will come into force from 1 July 2023 and provides a fresh framework for the recognition, protection, conservation, and preservation of Aboriginal cultural heritage.
Proponents should consider how the changes will impact their internal procedures relating to cultural heritage management and the validity of existing heritage agreements under the new legislation.
We discuss the Aboriginal cultural heritage reforms below.
The ACH Act replaces the controversial approvals process which sanctioned the destruction of culturally significant rock shelters at Juukan Gorge and introduces different tiers of management of activities which could impact Aboriginal cultural heritage. These activities are classified as exempt, Tier 1, Tier 2 or Tier 3 and each tier of activities has different requirements:
- For Exempt activities (prescribed exempt activities, such as travelling on an existing road or track, recreational activities carried out on or in public waters or in a public place, and the construction, renovation or demolition of some residential buildings), approvals are not required, and proponents are encouraged to avoid or minimise risk of harm to Aboriginal cultural heritage.
- For Tier 1 activities (prescribed activities with no or minimal ground disturbance, including, for example, aerial surveys, maintaining existing infrastructure, metal detecting and weed control), a due diligence assessment will be required and the proponent must take all reasonable steps to avoid or minimise risk of harm to Aboriginal cultural heritage;
- For Tier 2 activities (prescribed activities with low level ground disturbance, including digging with hand tools), a proponent will need to undertake a due diligence assessment, take all reasonable steps to avoid or minimise risk of harm to Aboriginal cultural heritage and carry out such activities in accordance with an ACH Permit or an approved or authorised ACH Management Plan; and
- For Tier 3 activities (prescribed activities with moderate to high levels of ground disturbance, including mining, drilling, digging with machinery), the proponent must conduct a due diligence assessment and carry out such activities in accordance with an approved or authorised ACH Management Plan.
The new framework under the ACH Act places additional due diligence and consultation obligations on all proponents, including mining companies, developers and local government authorities.
As there are still heritage agreements being signed by mining proponents with native title parties, proponents should ensure that such heritage agreements are consistent with the ACH Act and that proponents satisfy the due diligence requirements under the ACH Act (which may be more comprehensive).
The ACH Management Code sets out a comprehensive guide for due diligence assessments to be undertaken by proponents.
Some, but not all, due diligence requirements may be satisfied by proponents where the parties have taken steps under a ‘related agreement’ (which may include a heritage agreement, a s 31 agreement or an ILUA) to identify the location of Aboriginal cultural heritage (e.g., through a heritage survey) and/or to assess the risk of harm being caused to Aboriginal cultural heritage by a proponent’s activities.
Proponents should familiarise themselves with the due diligence requirements, as there are heavy penalties for non-compliance (with fines of up to $1,000,000 and possible imprisonment for individuals, and up to $10,000,000 for corporations).
Key takeaways
The ACH Act will significantly change the procedures for identification, management, and protection of cultural heritage across Western Australia. To prepare for these changes, it is essential that:
- proponents understand the new due diligence requirements and the tiered assessment process, and consider whether internal procedures relating to cultural heritage need to be reviewed, and
- proponents and Indigenous parties review current agreements and consider whether they are they fit for purpose and comply with the ACH Act.
If you have any queries about Aboriginal cultural heritage management and the approvals required in connection with your mining project or development, please contact Jonathan Fulcher or Alison Cooper for assistance.