If a landowner is proposing to develop land that may contain Aboriginal heritage values, then the landowner may find themselves required to be a signatory to a Noongar Standard Heritage Agreement (NSHA). Although NSHAs are becoming relatively common, owing to the complex origin story, it would appear that the requirement for NSHAs is not yet well understood by many landowners and developers.
In 2015, the South West Native Title Settlement was agreed, through which settlement was reached between the State of Western Australia and various Aboriginal groups in relation to native title rights in the South-West of Western Australia. The detailed terms of the South West Native Title Settlement are recorded in documents known as an Indigenous Land Use Agreement (ILUA).
Each of the ILUAs provides (amongst various other things) that matters of Aboriginal heritage are to be protected by the entry into of Aboriginal heritage agreements, for which the standard form is the NSHA.
In simple terms, the purpose of an NSHA is to set out agreed terms in relation to the process for surveying and protecting matters of Aboriginal heritage, in circumstances where ground disturbing activities are proposed. In this respect, an NSHA codifies what could be considered as best practice for implementing the broadly stated legal obligations that are already set out under the Aboriginal Heritage Act 1972 (WA) (AH Act).
Under the ILUA, entering into an NSHA is a requirement that only attaches to the State Government (including government agencies). On that note, there is no legal requirement under the ILUA for private landowners to enter into an NSHA. In that respect, for private landowners, entering into an NSHA could be viewed as being a voluntary exercise, rather than something that is mandatory.
Having said that, if a landowner is proposing to develop land that is known or is suspected to contain matters of Aboriginal heritage significance, then it may be prudent to enter into an NSHA, given that it may assist to streamline the obligations that would apply anyway under the AH Act.
Although the ILUA does not require private landowners to enter into NSHAs, there is a clause in the ILUA that says that the Minister responsible for the Mining Act 1978 (WA) will impose conditions on any mining tenements to require the holder of the mining tenement to enter into an NSHA (or other Aboriginal heritage agreement) before exercising any of the rights, powers or duties under the mining tenement.
This practically means that entering into an NSHA (or other Aboriginal heritage agreement) is a requirement for anybody who holds a mining tenement and wishes to act upon that mining tenement. Failure to enter into an NSHA by the holder of a mining tenement may result in breach of the relevant condition, which could render the mining tenement liable to forfeiture.
If you receive an NSHA document with a request that it be signed and returned, the first question to ask is whether signing the NSHA is a mandatory legal requirement in the relevant circumstances. Entering into an NSHA will be voluntary in some circumstances. Even where entering into an NSHA is voluntary, a secondary question to ask is whether an NSHA should be entered into regardless, bearing in mind that obligations under the AH Act may apply anyway and an NSHA may serve to streamline compliance with those obligations.
NSHAs are currently based upon the AH Act provisions. The AH Act will in the foreseeable future be replaced with the Aboriginal Cultural Heritage Act 2021 (WA), once its operative provisions come into effect. It would appear likely that the terms of the NSHA will have to be updated under the relevant legislation changes.
If you have any questions about NSHA, please do not hesitate to contact us.