Guiding us through the transition back to the Aboriginal Heritage Act - Guidelines released

The Aboriginal Cultural Heritage Act 2021 (WA) has now officially been repealed and the Aboriginal Heritage Act 1972 (WA) (AHA) has been reinstated with amendments. The Department of Planning, Lands and Heritage (DPLH) has published two new guideline documents on their website to aid in understanding the operation of the amended AHA. This blog post sets out the key details of DPLH's guidance documents and the State Government funding that has recently been announced to assist proponents to comply with their obligations under the AHA.

Our previous blog post sets out the key things you need to know in relation to the transition back to the amended AHA.

AHA Guidelines

DPLH has published the Aboriginal Heritage Act 1972 Guidelines (AHA Guidelines) which is aimed at assisting landowners to determine whether a section 18 consent is required. The AHA Guidelines also set out the process, content requirements and timeframes for making a section 18 application. DPLH recommends the AHA Guidelines are followed in order to mitigate the potential for offences under the AHA. The AHA Guidelines are supporting policy documents issued by DPLH.

The AHA Guidelines outline that before embarking on any activities on land, landowners (which include Crown lessees and tenement holders) should undertake the following steps to determine whether those works will affect Aboriginal sites or Aboriginal objects (as defined in the AHA):

• assess whether there is any Aboriginal heritage on the land. This may include searching the Aboriginal Cultural Heritage Inquiry System or undertaking consultation with Aboriginal people;
• consider any potential for harm to any Aboriginal sites that are discovered; and
• determine the nature and level of the potential harm and whether a section 18 consent will be required.

This is similar to the codified due diligence under the ACH Act, but in this case, is discretionary.

As highlighted in our previous blog post, the amendments to the AHA now include a condition on section 18 consent holders to disclose ‘new information’ that becomes available.

The AHA Guidelines contain three examples of what would be considered ‘new information’, being:

• new information about a known Aboriginal site on the land the subject of the section 18 consent (eg the age of the Aboriginal site);
• new information about any place that the Aboriginal Cultural Heritage Committee (ACH Committee) did not recognise as an Aboriginal site which may mean that place should be recognised as an Aboriginal site; and
• new information about an Aboriginal site on the land not known at the time the section 18 consent was granted.

This list should not be considered by proponents as exhaustive and it is recommended that a conservative approach be taken with respect to any new information in relation to Aboriginal sites or objects.

The implications of the new information requirement, including the examples provided in the AHA Guidelines, are that proponents who hold section 18 consents should have a good understanding of whether new information has come to light. This could include, for example, reviewing existing surveys and understanding any gaps in information and consulting with the relevant knowledge holders for the area.

Consultation policy for section 18 applications

DPLH has also released a Consultation Policy for Section 18 Applications (Consultation Policy). The Consultation Policy provides guidance on how to undertake consultation when making a section 16 or section 18 application.

The AHA does not contain any statutory obligations in relation to consultation, however, the Consultation Policy states that a failure to undertake adequate consultation may result in the ACH Committee and/or the Minister for Aboriginal Affairs (Minister) deferring their decision until adequate consultation has taken place. Section 18 applications are determined by the Minister, acting upon the recommendation of the ACH Committee. The Consultation Policy notes that the ACH Committee will have regard to the general interests of the community “with special consideration given to the interests of the relevant Aboriginal People affected”. It remains to be seen whether there may be delays or challenges to section 16 or 18 decisions on the basis of inadequate consultation.

The Consultation Policy sets out the standards for ‘good practice consultation’ which includes:

• Full disclosure of information relevant to the application in relation to possible impacts on Aboriginal heritage, such as sites or objects.
• Information on any feasible alternative methods as to how the landowner may undertake the proposed purpose, which may have alternative or lower impacts on the Aboriginal sites or objects.
• Providing the opportunity for those being consulted to respond to the information provided and have that response considered and advice provided has to whether and how it’s been addressed.
• Obtaining knowledge of all Aboriginal sites and objects, including the significance and importance of those sites or objects, in the application area.
• Respecting Aboriginal traditions, cultural protocols and obligations are respected, including taking reasonable steps to make contact and allowing sufficient time for genuine consultation to occur.
• Providing a culturally appropriate space for the respectful exchange of information by both parties.

The Consultation Policy provides that supporting documentation should be submitted as part of the section 18 application to evidence the consultation process. This evidence will also be relied upon in circumstances where the landowner has tried, in good faith, to conduct consultation, but that consultation has not been successful.

The Consultation Policy also sets out that consultation should be undertaken with the Native Title Parties (as defined in the AHA) and other Aboriginal people who may be affected (ie knowledge holders). DPLH can assist landowners in identifying ‘other Aboriginal people who may be affected’.

Aboriginal Heritage Survey Assistance Program

The Department of Mines, Industry, Regulation and Safety (DMIRS) announced last week that the State Government would be providing financial assistance to exploration licence and prospecting licence holders for undertaking Aboriginal cultural heritage surveys, provided they have an annual gross production value of less than $600 million. The program will run for five years (until 2028).

Eligible exploration licence holders are entitled to claim a rebate for Aboriginal heritage survey costs of up to 50% of the annual rent payable on an affected tenement for the first three years of the program, and a rebate for Aboriginal heritage survey costs of up to 25% of the annual rent payable for the final two years of the program.

More details in relation to the program can be found here.

For more detailed advice in relation to your activities and Aboriginal cultural heritage compliance obligations, please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt.

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