Risk of harm - when do you need to seek an approval under the ACH Act?

As highlighted in our blog post on Friday, the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) came into force on 1 July 2023. Today’s blog post synthesises the requirements under the ACH Act to provide general guidance as to when you may need to seek an approval under the ACH Act. Approval is required when an activity has an associated risk of harm to Aboriginal cultural heritage (ACH). Subject to performing a due diligence assessment (DDA) and appropriate consultation, an authorisation may not be required in all circumstances.

The ACH Act categorises activities into tiers, reflecting different levels of ground disturbance arising from different types of works and operations. A corresponding authorisation process is then provided for each tier. Activity tiers and the required authorisations are set out in the Aboriginal Cultural Heritage Regulations 2022 (ACH Regulations).

Prior to conducting any type of activity (other than an Exempt Activity), land users must conduct a DDA in accordance with the steps set out in the ACH Management Code. At a high level, the steps of a DDA are as follows:

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

Exempt Activities do not require a DDA to be conducted. However, it may still be prudent to undertake a DDA to manage risk, including to ensure any contractual obligations in respect of ACH are satisfied.

Determining the applicable tier will require consideration of the specific activities that are proposed to be carried out and will vary on a case by case basis. Key considerations include the nature of the works proposed, the location of the proposed activities and the existing level of disturbance present.

Consultation Guidelines and Knowledge Holder Guidelines have been published by DPLH to assist land users in ensuring proper consultation is conducted with the relevant knowledge holders. Those Guidelines assist in determining steps to be taken to find out who the relevant knowledge holders for an area are.

Where it is determined through the DDA that there is no risk of harm to ACH, the proposed activity can proceed as planned with no authorisation required (provided it is not in a Protected Area).

Where a land user intends to undertake a Tier 3 Activity where there is a risk of harm to ACH, the land user must seek an approved or authorised ACH Management Plan before the activity can lawfully proceed. For Tier 2 Activities that present a risk of harm to ACH, the land user must obtain an ACH Permit. Tier 2 Activities can also be authorised by an ACH Management Plan.

Broadly, DDA and other actions required for each tier of activity are as follows:

Exempt Activities: DDA is not compulsory, but may be prudent to undertake

Tier 1 Activities: must undertake DDA and use reasonable steps to avoid/minimise harm to ACH

Tier 2 Activities:

• • No risk of harm to ACH: Must undertake DDA and use reasonable steps to avoid/minimise harm to ACH
  • Risk of harm to ACH: Must undertake DDA and obtain an ACH Permit/be party to an ACH Management Plan

Tier 3 Activities:

• • No risk of harm to ACH: Must undertake DDA and use reasonable steps to avoid/minimise harm to ACH
  • Risk of harm to ACH: Must undertake DDA and be party to an ACH Management Plan

What to do if you’re not sure

The activity tiers set out in the ACH Regulations contain a non-exhaustive list of example activities. Where an activity is not specifically described, Division 9 of the ACH Regulations provides a number of catch all provisions. These catch all provisions categorise activities into tiers based on the extent of ground disturbance and provide that where works or operations are described by more than one activity, the most specific description is the activity that prevails.

If it is still unclear which tier your activity may fall into, we recommend:

• seeking advice from DPLH; and
• consulting with the relevant Aboriginal persons and knowledge holders for an area,

prior to undertaking the proposed activity.

Importantly, land users must conduct a DDA prior to commencing any activities (except for Exempt Activities), regardless of whether the land user considers that there is a risk of harm to ACH. DDA is a foundational requirement of the ACH Act and embedding strong processes around DDA within your organisation will assist to mitigate risk arising from the new regime.

For more detailed advice in relation to your activities and due diligence obligations, please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt.

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