An Update On The Aboriginal Cultural Heritage Act

On 1 July 2023, the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) became operative.  

The Department of Planning, Land and Heritage (DPLH) has now released Guidelines and Regulations in their final form to assist land users and Local Aboriginal Cultural Heritage Services (LACHS) with the implementation of the ACH Act. We will set out some of the key takeaways for proponents regarding the implementation of a Due Diligence Assessment (DDA) capable of discharging those obligations under the ACH Act.

The ACH Act separates activities into four (4) tiers (exempt activities, and tiers 1-3 depending on the level of ground disturbance).  It is important to determine the correct tier for your activity as the DDA dictates the appropriate authorisation pathway that you must undertake to discharge your duties. The necessary DDA process must be undertaken for both future and past projects.  If a DDA has been properly conducted it can constitute a defence to an offence under the ACH Act.

The five steps include:

1. confirmation of whether the activity is located within a protected area;
2. confirmation of whether the activity is exempt and, if not, the activity tier of the proposed activity;
3. assessment of whether ACH is or is likely to be located in the proposed activity area;
4. assessment as to whether there is a risk of harm to ACH by the proposed activity; and
5. identification of the interested Aboriginal party.

The practical details of your DDA are outlined in the ACH Management Code, the ACH Survey Report Guidelines and the ACH Investigation Guidelines.

Existing Projects

If you have an existing project there may be circumstances where you are required to further satisfy the corresponding DDA requirements for your tier (if you don’t have existing authority to rely on). Reliance on your existing DDA will be possible if it is compliant with the ACH Act and Regulations. For developments which already have approval, the presumption is that a proponent will have complied with the existing Aboriginal Heritage Act 1972 (WA) (AH Act) for the purposes of a DDA, and therefore should be consistent with the ACH Act. However, the obligation still rests with the proponent to ensure those processes undertaken are consistent and capable of discharging the new duties.

Future Projects

For all future projects you will need to follow the processes under the ACH Act. There are mechanisms to assist with using your existing due diligence procedures, as well as Related Agreements capable of meeting the ACH requirements, to discharge some of those duties under the DDA.  This means, that if you have already undertaken a due diligence assessment under the current AH Act and you have entered into an agreement to manage that risk, whether present or not, you will be able to rely on that agreement (to a degree) when looking at your DDA obligations under the ACH Act.

It is important that meaningful engagement is commenced early on with interested Aboriginal parties.  Pragmatic engagement at early stages of a project is important and offers proponents potential relief from the more timely process associated with gaining permits.

Exemptions

‘Like for like’ activities are exempt activities under the ACH Act. This means, if your proposed activity is no greater in surface area, height or depth than the existing use or development then it is a ‘like for like’ activity and such activities will be exempt from the DDA process by the ACH Act Regulations.

Key Take Aways:

It is important that proponents keep a record of their past DDA and ensure that it was conducted in accordance with the requirements for their tier of activity under the ACH Act. If a DDA is conducted properly and meaningful engagement with the interested Aboriginal parties is done early, it can help to ensure that you can commence your project as quickly as possible.

For detailed advice, please contact our team.

Guidelines

Please see list of Guidelines, current as of 26 June 2023:

• ACH Management Code;
• ACH Management Plan Template and Guiding Notes;
• Activity Tiers;
• Consultation Guidelines;
• Determining Substantially Commenced Guidelines;
• Knowledge Holder Guidelines;
• LACHS Fees Guidelines;
• Prescribed Timeframes Guidelines;
• Protected Area Order Guidelines;
• State Significant Guidelines;
• Survey Report Guidelines; and
• Investigation Guidelines.