Survey Reports - what can be relied on 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. One of the key concerns raised in public discussions in recent weeks was the impact the ACH Act may have on existing heritage surveys. On 23 June 2023, the Department of Planning, Lands and Heritage (DPLH) released the Survey Report Guidelines to clarify this issue. This blog post breaks down the compliance requirements in the Survey Report Guidelines.

In certain industry sectors, such as mining, it has become standard for proponents to conduct heritage surveys prior to commencing new ground disturbing works. There was previously no positive statutory obligation to do so under the Aboriginal Heritage Act 1972 (WA) (AHA), but a heritage survey could be used as a defence for breaching the AHA.

All land users in Western Australia are now required to conduct a due diligence assessment (DDA) prior to undertaking any activities (except Exempt Activities). DDAs must be conducted in accordance with the Management Code, and for Tier 2 Activities and Tier 3 Activities, DDA will involve consultation with the relevant Traditional Owners and knowledge holders for an area. Heritage surveys and the resulting survey reports are an important mitigation mechanism in a DDA to determine whether Aboriginal cultural heritage (ACH) is present in an area and whether there is a risk of harm to ACH posed by the proposed activities. However, heritage surveys are not compulsory for all activities. For further context on DDAs and the risk of harm to ACH, please see our previous blog post.

The Survey Report Guidelines set out the compliance requirements for existing survey reports and future survey reports to be relied upon under the ACH Act. We have summarised these requirements below.

The Survey Report Guidelines contain different requirements for survey reports completed prior to or post 1 July 2024. The State Government advised that this distinction is designed to allow stakeholders (including proponents, Aboriginal people and Aboriginal organisations) time to transition to the best practice standards that the criteria for survey reports completed on or after 1 July 2024 are intended to reflect.

Survey Reports completed prior to 1 July 2024

A single survey report or multiple survey reports may be used to fulfil the requirements for survey reports completed prior to 1 July 2024. Proponents seeking to rely on existing survey reports must document their assessments against the Survey Report Guidelines.

Criteria

1. The survey report must have the involvement, agreement or endorsement of the relevant Aboriginal party – this can be achieved retrospectively through an endorsement by the relevant Aboriginal party after 1 July 2023.
2. The survey report must relate to tangible (archaeological) and/or intangible (anthropological) elements of ACH. One or more survey reports may address these elements.
3. The survey report must include a clear statement as to whether there is ACH present within the activity area.
4. The area covered by the survey report must completely cover the proposed activity area. Again, one or more survey reports can cover the activity area.
5. Parts of the survey report may not be relied upon for the purposes of a DDA if limitations exist which prevent the accurate or reliable identification of ACH.
6. The scope of activities which the survey report was completed must correspond to the proposed activity.
7. Where the survey report contains a recommendation for further surveys, that survey report can only be relied upon for the purposes of a DDA in conjunction with any subsequent survey reports that specifically address that recommendation.

Survey reports completed on or after 1 July 2024

Survey reports completed after 1 July 2024 and relied upon for the purpose of satisfying a DDA will need to satisfy the following criteria:

1. Contain an endorsement by the relevant Aboriginal party.
2. Contain a list of the survey participants, including identification of any knowledge holders.
3. Set out the information provided to the Aboriginal party/survey participants relating to the purpose and context of the survey.
4. Detail the survey methodology used and the area surveyed.
5. Detailed descriptions of any ACH present in the survey area.
6. Identify whether the survey relates to tangible and/or intangible ACH.
7. List any limitations that may have prevented ACH from being identified.

The Survey Report Guidelines reflect ‘best practices’ in relation to ACH management. Many organisations will already be operating in accordance with best practice and will be well prepared for the new requirements. However, achieving best practice will generally require all organisations to be resourced appropriately, have appropriate policies and procedures in place, review and analyse recent survey reports to confirm compliance, and focus on the development or maintenance of constructive relationships with the Traditional Owners relevant to their activity areas.

Please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt if you require any assistance assessing and reviewing your existing survey reports and approvals for compliance under the ACH Act.

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