Aboriginal Cultural Heritage Act: What You Need To Know
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.”
By the 1st of July 2023, the Aboriginal Cultural Heritage Act (ACH Act) will be in place, and 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.
PROTECTED AREA ORDER
A protected area order is required for the ACH Act to be recognised. The protected area application can only be made by a local knowledge holder (An Aboriginal person who, in accordance with Aborignal trandition, holds knowledge about the Aborignal cultural heritage of the area.)
Once that application is made the ACH council will notify each local service, native title party and knowledge holder for that area. If the council believe that the area should be classified as a protected area, public notice will be given and each landholder for the area notified.
Once notified about this, each party is able to make submissions to the ACH Council about the application area.
ACH Council will make recommendations to the Minister for Aboriginal Affairs about whether they believe the area should be protected and any conditions that should be imposed.
The Minister has the authority to declare the area protected and issue the order. Once issued, it must be complied with.
DUE DILIGENCE ASSESSMENT
This is the process that must be undertaken by anyone who wants to “disturb” ground on an area that is bigger than 1100 metres squared.
The due diligence assessment involves:
Notifying each ACH local service for your area OR notifying each native title holder or knowledge holder for the area, of the proposed activity.
For a Tier 2 or 3 activity, each notified person is able to submit a statement about their views on the activity and potential harm.
An application is made by the ACH Council to gain a permit to carry out their activity.
Things that are exempt: driving on a road, taking photos, fire management, going onto the land during an emergency, and building on a small lot.
There are three tiers to activities:
Tier 1: No or minimal ground disturbance, a footpath or undertaking an ariel survey. You can manage feral animals and weeds BUT you cannot remove more than 10 metres squared of ground in total, disturb more than 1 metre squared of contiguous ground or excavate to a depth of more than 0.5 metres.
Tier 2: Low ground disturbance, a farm road, or a fence.
Tier 3: Moderate to high ground disturbance, clearing trees or building a dam.
If it is not in a protected area on Tier 1 you can go about your business without any authorisation but will need to complete a visual inspection and keep a record of this.
A Tier 2 activity will need an ACH permit to be carried out.
A Tier 3 activity will be required to have an approved or authorised ACH management plan in consultation with interested Aboriginal parties including local ACH services and native title parties in the area. Aboriginal parties must give their formal consent to the plan before it can be carried out in accordance with the plan.
Should new information about the site be offered, the Minister has the right to issue a stop activity order, prohibition order and remediation order to prevent any harm.
HOW MUCH TIME ARE WE TALKING?
A Tier 2 activity permit will take a total of 70 days, starting from the knowledge holder's initial response.
28 days from the knowledge holders' response in regard to their views;
A further 28 days for the prescribed person to make a decision;
Plus another 14 days for the council to make theirs.
The prescribed time for a management plan is 140 days beginning 5 days after written notice about the plan is made to the council.
Plus 28 days after advising the council of the agreement, for them to make a recommendation to the Minister to authorise or not.
90 days after the day the Council determines there is ACH of state significance.
Another 35 days for the final decision.
WHO DO YOU NEED TO TALK TO?
You will need to contact either the local Aboriginal Cultural Heritage Services, local knowledge holders (where known), or failing that, the Native Title representative bodies.
If you receive no response to the initial contact you must make another attempt, once per week, for the next three weeks.
Still no response? You must make more attempts, once a fortnight for the next eight weeks, followed by once per week for two weeks after that. You will also need to make allowances for cultural conventions and commitments.
Still no response? Contact the department.
Once you do get in contact, you must provide the opportunity for the correct people to be consulted and for them to advise of any constraints they might have, and then to respond and advise of the timing and location for a consultation.
Can’t find all the knowledge holders? You have to publish a public notice.
Now, you need to hold two meetings:
Meeting one is to be organised at least two weeks from the initial invitation or public notice.
Meeting two needs to be held in the area of the proposed activity unless agreed by everyone that is not required.
At least one meeting needs to be held in the area of the proposed activity unless agreed by everyone that is not required.
And now, a third meeting is arranged for the landholder to discuss how the views addressed in the second meeting have been addressed.
WHAT ELSE?
If the knowledge holders don’t agree you are able to escalate it to the council, but that will cost you more time and money.
The fines for destroying a heritage are as follows:
Up to $10 million for a company;
Up to $1 million for an individual and up to 5 years imprisonment for serious harm.
That can go down to $250,000 and $25,000 for minor harm.
Failing to report a site will get you $20,000 for individuals and $100,000 for companies.
Heritage sites are continually being added to the map, usually prompted by interest in projects.
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.
