Aboriginal Cultural Heritage Act: Tiered Assessment Process
In December 2021, the WA parliament passed new laws to “protect Aboriginal cultural heritage by giving Aboriginal people a much stronger say in managing their cultural heritage.”
On the 1st of July, the Aboriginal Cultural Heritage Act (ACH Act) will begin, affecting almost every farmer in WA.
The Act will allow regulation and control of ANY action that is deemed to be damaging to Aboriginal heritage.
Exempt Activities
If the activity is exempt (doesn’t need permission to do) no action needs to be taken in relation to the ACH Act.
Tier 1 Activities
Activity may proceed subject to steps being taken to avoid or minimise harm. Proponent may request confirmation from the Department of Planning, Lands and Heritage that the proposed activity is in fact a Tier 1 activity.
Tier 3 Activities
Due Diligence Process: Once confirmed as a tier three activity the proponent continues with the due diligence process in order to understand whether the activity will harm Aboriginal Cultural Heritage. If no determined that no harm will be caused, they may proceed.
Ascertain the level of impact: If the due diligence process indicates that the activity is likely to cause harm to the ACH then the proponent will need to develop an ACH Management Plan that sets out how the activity will be conducted.
Notify: The proponent must consult relevant Aboriginal parties about the activity.
Apply: The proponent is required to negotiate with Aboriginal parties on the ACH Management Plan. Some of the details to be negotiated may include what places need to be avoided, fencing and monitoring, places to be salvaged and what to do if new information arises.
Agreement, Mediation or No Agreement: If an agreement is reached the ACH plan is submitted to Council for its endorsement and approval, after which the activity can proceed. If the proponent and Aboriginal parties cannot reach an agreement the proponent may submit the ACH Management Plan to the Council. Once received the Council will liaise with parties to try and facilitate an agreement. If no agreement is reached the decision to authorise the plan will rest with the minister. If the minister approves, the activity may proceed.
Tier 2 Activities
Due diligence Process: Once confirmed as a tier two activity the proponent continues with the due diligence process in order to understand whether the activity will harm Aboriginal Cultural Heritage. If no determined that no harm will be caused, they may proceed.
Ascertain the level of impact: If the due diligence process indicates that the activity is likely to cause harm to Aboriginal cultural heritage then an ACH Permit is required.
Notify: Proponent must notify Aboriginal people before applying for a permit.
Apply: Proponent submits permit application to ACH Council which includes submissions provided by Aboriginal people notified.
Procedural Fairness: ACH Council informs Aboriginal people it has received an ACH Permit application and seeks their views on that application.
Decision: the Council may request information, and approve or refuse the permit application. If the ACH Council grants the permit, the activity may proceed.
This is going to affect almost every single farmer in WA. I encourage you to watch the three-part series that Bailiwick Legal has put together on YouTube about this and contact them if you have any other questions.
**I have sourced this information from reputable sources and will acknowledge any errors if they arise.
