The Department of Planning, Lands and Heritage (DPLH) has now released final versions of a number of key guidelines designed to support Western Australia’s new Aboriginal Cultural Heritage Act 2021 (WA) (ACHA). The guidelines are the result of an extensive three phase co-design process undertaken by DPLH in 2022. The final guidelines and related documents are intended to guide proponents and support Traditional Owners in navigating Western Australia’s new framework to protect and manage Aboriginal cultural heritage (ACH).
Snapshot
- The following key documents were released by DPLH last week, being the last of the suite of supporting instruments to the ACHA:
- ACH Management Code;
- ACH Consultation Guidelines;
- ACH Knowledge Holder Guidelines;
- ACH Activity Tiers;
- ACH Protected Area Order Guidelines;
- ACH State Significance Guidelines;
- ACH Management Plan Template;
- ACH Determining Substantially Commenced Guidelines;
- ACH LACHS (Fees) Guidelines; and
- ACH Timeframes.
- The final guidelines largely mirror the Phase 3 drafts, with some key changes which include:
- the number of activity example categories has been reduced and the examples have been set out in more general terms;
- the Fee Guidelines provide for a 20% uplift in fees for very remote areas or for services provided urgently;
- the Fee Guidelines have amended the fee structure to a range, rather than a set fee; and
- the prescribed timeframes for all notice and consultation periods have been increased.
- Notably, the final ACH Management Code has remained substantively unchanged. However the concepts of “new or additional ground disturbance” and “like for like” activities, which were introduced in the Phase 3 draft of the ACH Management Code have been removed from the final ACH Management Code but this concept is now in the ACH Activity Tiers.
We summarise the changes reflected in each of the final guidelines below.
ACH Management Code
Under section 105 of the ACH it is the responsibility of a proponent to undertake a due diligence assessment (DDA) prior to conducting a proposed activity in accordance with the ACH Management Code. The ACH Management Code sets out the processes to be followed in relation to DDA. The intention of DDA is to assess the risk of harm to ACH posed by a proposed activity, which will then enable proponents to determine how to proceed in relation to the proposed activity (ie what level of engagement and authority is required). The ACH Management Code outlines the steps to be undertaken by proponents seeking to undertake Tier 1, 2 and 3 activities and provides guidance on the DDA requirements needed to satisfy each of these steps.
The ACH Management Code outlines the five key purposes of undertaking DDA, namely to determine whether:
- the proposed activity is located in a “Protected Area” (as declared by the Minister of Aboriginal Affairs, upon recommendation of the Aboriginal Cultural Heritage Council (ACH Council));
- there is any ACH located within the proposed activity area;
- the activity can be carried out in an alternative way, such as using an alternative location or alternative method, to avoid harming ACH, and therefore can be carried out without any authorisation;
- authorisation is required for the proposed activity, which may require:
- an ACH Permit; or
- an ACH Management Plan; and
- what type of engagement, with Aboriginal parties is required.
The general steps to be followed when undertaking a DDA for Tier 1, 2 and 3 activities are substantively the same as in the Phase 3 draft Management Code, with some additional guidance added regarding the specific content of each step. The final ACH Management Code has been amended to clarify that a Tier 2 activity may be carried out in accordance with either an ACH permit or an approved or authorised management plan.
The Phase 3 draft of the ACH Management Code contained a detailed outline of DDA considerations and included two new defined terms – “new or additional disturbance” and “like for like activities”. The effect of these definitions was that proposed activities which amounted to “like for like” activities with a previous ground disturbing activity, and which did not cause “new or additional” disturbance, would not require a DDA. This caused a significant amount of confusion, as what was considered “like for like” was extremely limited and these terms are not referenced in the ACHA. The final ACH Management Code has removed these defined terms and instead focuses on the tier of the proposed activities. This concept is now located in the ACH Activity Tiers.
ACH Activity Tiers
The ACHA categorises activities into tiers referencing the level of ground disturbance, and provides a corresponding authorisation process for each of the tiers of activity. Where there is a risk of harm to ACH from a proposed activity, a proponent is required to follow the authorisation pathway corresponding to the relevant activity tier.
The final ACH Activity Tiers Guideline has attempted to simplify and be less prescriptive in providing the examples of activities for each category by introducing:
- a fall-back provision, whereby if an activity is described by more than one classification set out in the activity categories Schedule, the more specific description of the activity will apply;
- a new concept of a “general activities” classification which includes the bulk of activities and has absorbed those previously classified under the “infrastructure and land development activities” and “other activities” classifications; and
- a new classification of “Aboriginal cultural heritage investigation activities” to replace the “heritage research activities” classification.
The number of activity categories broadly has been reduced in favour of activities being expressed in more general terms.
The “like for like” exemption has been moved from the ACH Management Code to within the ACH Activity Tiers and has been refined to focus on the type of previous disturbance (ie an activity will be “like for like” if it is limited to the same extent of previous disturbance).
ACH Local Aboriginal Cultural Heritage Services (Fees) Guidelines
Local Aboriginal cultural heritage services (LACHS) are intended to be the primary interface for proponents under the ACHA and will play a key role in the identification, conservation and management of ACH. In recognition of this key role, the ACHA provides that LACHS are able to offset their costs by charging a fee for their services. The ACH LACHS (Fees) Guidelines (Fee Guidelines) set out the scope of fees a LACHS is able to charge for the services it provides.
The final Fee Guidelines clarify that a LACHS can only charge fees in accordance with this approved fee structure. Other key changes include:
- Expansion of the three roles permitted to charge for services in the draft Guidelines – LACHS Heritage Officer, LACHS Senior Heritage Officer, and Expert Service Providers – by adding the roles of Senior Aboriginal Consultant and Aboriginal Consultant, in recognition of the different role and responsibilities that Aboriginal people have within their communities. The services that may be charged for outlined in Part 5 have been amended to reflect these added roles.
- LACHS providing services in very remote areas or who are required to provide services urgently due to exceptional circumstances are permitted to charge proponents up to an additional 20% on the listed service provider rates.
- The service provider rates outlined in Table A of the Guidelines have been amended to provide for a range in the fees payable, however rates have not changed significantly to those proposed in the draft Guidelines, ranging from $80/hour for a LACHS Heritage Officer or Aboriginal Consultant to $2250/day for ‘Other’ Expert Service Providers.
ACH Timeframes
The final ACH Timeframes set out the prescribed periods for notification and consultation to be undertaken under the ACHA for tier 2 and 3 activities. Since the release of the final key documents, the timeframes for all relevant notice and consultation periods have been increased, although the time increases are not significant. For example, the time period for the ACH Council to make a determination as to whether ACH is of State significance has increased from 25 to 35 business days.
Next Steps
The ACHA will come into force on 1 July 2023 and replace the existing Aboriginal Heritage Act 1972 (WA), and businesses should have already commenced transition planning.
Please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt if you would like to discuss the ACHA.
To view the final suite of ACH Guidelines, visit this link.
For further information, please contact:
Melanie Debenham, Partner, Herbert Smith Freehills
melanie.debenham@hsf.com
