Overlap between the Environmental Protection Act and the ACH Act Aboriginal cultural heritage considerations

Aboriginal cultural heritage (ACH) is a relevant factor to both the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) and Part IV of the Environmental Protection Act 1986 (WA) (EP Act). The Environmental Protection Authority (EPA) has released guidelines to address the overlap between the EPA’s consideration of ACH in environmental impact assessments and the ACH Act processes. We have set out the key things you need to know about the EPA guidelines in this blog post.

For more information on the commencement of the ACH Act, see our previous blog post.

Social Surroundings in the EP Act

The EPA considers ‘social surroundings’ as a part of its assessment of significant proposals under Part IV of the EP Act.  ACH is part of the ‘social surroundings’ and as such, the EPA is required to consider ACH to the extent it is impacted by a Part IV proposal. The EPA released Interim Technical Guidelines (Interim Guidelines) which set out the interaction between the requirement for environmental impact assessments and the ACH Act.

Key issues covered by Interim Guidelines include:

• the EPA’s environmental impact assessment process for ACH as part of the ‘social surroundings’;
• the information the EPA will require in assessing proposals under Part IV; and
• how the EPA may take into account the processes under the ACH Act.

The Interim Guidelines confirm that the EPA considers that potential harm to ACH within an activity area may be mitigated by the processes contained in the ACH Act in most cases. However, the Interim Guidelines note that this will be determined on a case by case basis, and separate assessment of ACH by the EPA may still be required.

EPA objectives

The EPA’s objective for the social surroundings environmental factor is ‘to protect social surroundings from significant harm’. The EPA will make an assessment on ACH where it determines that the ACH Act processes are not reasonably likely to meet the EPA’s objectives and a proposal is likely to have a significant impact to physical or biological surroundings which directly affect ACH values inside and outside an activity area.

EPA considerations

When considering the likely effects of a proposal under Part IV on ACH, the EPA will have regard to:

• the extent to which ACH values are directly impacted by physical or biological surroundings;
• the extent to which the ACH Act processes mitigate impacts to ACH and whether the EPA’s objective for social surroundings is likely to be met by the ACH processes;
• the places where ACH may be affected by a proposal – inside and outside of an activity area; and
• the extent to which the EPA can recommend reasonable conditions to protect ACH from significant impact (ie by establishing avoidance areas or requiring a proponent to achieve environmental outcomes to protect ACH).

The Interim Guidelines state that the EPA will take account of the reasonable steps taken by proponents to ensure consultation with the relevant Aboriginal parties in accordance with the ACH Act and the Consultation Guidelines. Proponents should provide the EPA with information in respect of the consultation steps they have taken.

ACH inside the activity area

The Interim Guidelines note that the ACH Act processes will likely meet the EPA’s objective for the social surroundings factor for impacts to ACH inside the activity area. Proponents should provide the EPA with:

• a description of the activity area;
• an explanation of how ACH Act processes will consider physical and biological impacts to ACH values in the activity area;
• likely outcomes of the ACH Act processes (ie whether an ACH Permit or ACH Management Plan will be required); and
• a conclusion as to whether the application of the ACH Act processes is likely to result in consistency with the EPA’s objective for social surroundings.

To meet EPA requirements and to avoid duplication, it will be important to ensure ACH is assessed from a physical and biological perspective as part of the work undertaken to satisfy a proponent's obligations under the ACH Act.

ACH outside the activity area

The ACH Act processes (without prior planning) are less likely to meet the EPA’s objective for the social surroundings factor for impacts to ACH outside the activity area. The Interim Guidelines identify the following information required by the EPA:

• the physical and biological impacts of the activity outside of the activity area;
• ACH values likely to be significantly harmed by those impacts;
• the extent and duration of the impacts on ACH (taking cumulative effects into account);
• proposed avoidance and mitigation strategies;
• residual impacts to ACH; and
• the proposed environmental outcomes to protect ACH which are likely to be harmed by physical or biological impacts from the proposal.

It is presently unclear how far the EPA’s requirements extend within the landscape of an activity area. How the EPA’s requirements are reflected in practice, either through a more expansive approach to discharge of the ACH Act obligations or the additional information to be provided during environmental impact assessments, remains to be seen at this stage.

Key takeaways

• There is overlap between the social surroundings consideration under Part IV of the EP Act and the protections for ACH under the ACH Act.
• The EPA’s expectations during an environmental impact assessment go beyond the scope of the ACH Act, considering impacts to ACH inside and outside of the activity area. Due diligence assessments and authorisations under the ACH Act are only concerned with impact of activities inside the activity area.
• Early engagement with the EPA and scoping of surveys assessment in respect of ACH will be key. Prior planning and compliance with the ACH Act processes will allow proponents to cover ACH by providing evidence of compliance with the ACH Act. The Interim Guidelines note that an ACH Management Plan which includes avoidance, environmental outcomes, management and monitoring measures for physical and biological impacts to ACH values will likely satisfy the EPA that its objectives can be met.
• If referral of a proposal under Part IV of the EP Act is made before a proponent has reviewed and complied with its ACH Act obligations, there is greater potential for duplication in obligations.

If you are unsure of your compliance requirements and how to best manage obligations under the EP Act and the ACH Act, please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt for further advice.

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By Melanie Debenham, Partner, Naomi Hutchings, Special Counsel and Amelia Arndt, Senior Associate.