Aboriginal Cultural Heritage Act: Activity Categories
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.”
From the 1st of July 2023, the Aboriginal Cultural Heritage Act (ACH Act) will be in place, affecting almost every farmer in WA.
This Act will allow regulation and control of ANY action that is deemed to be damaging to Aboriginal Heritage.
WHAT ARE THE ACTIVITY CATEGORIES AS DEFINED IN THE ACT?
Tier 1: An activity involving no, or minimal level of ground disturbance that is prescribed for the purpose of this definition.
Tier 2: An activity involving a low level of ground disturbance that is prescribed for the purpose of this definition.
Tier 3: An activity involving a moderate to high level of ground disturbance that is prescribed for the purpose of this definition.
WHAT IS AN “EXEMPT ACTIVITY” AS DEFINED IN THE ACT?
According to Section 11 of the Act, exempt activity means any of the following:
Construction, renovation or demolition of a building occupied, or intended for occupation as a place of residence, or a building ancillary to such a building as defined in the Planning and Development Act 2005 section 4(1) that is less than 1100 metres squared.
Development of a prescribed type carried out in accordance with the Planning and Development Act 2005.
Travel on an existing road or track.
The taking of photos for recreational purposes.
Recreational activities carried out in public waters or a public place.
Burning being carried out for fire prevention or control purposes, or other fire management works on Crown land; and by a public authority.
Clearing of a kind set out in the Environmental Protection Act 1986, schedule 6, item 10, 10A, 11 or 12.
Other activities, if any, prescribed for the purpose of this paragraph.
WHAT IS THE APPROVAL PROCESS?
AUTHORITY TO CARRY OUT A TIER 1 ACTIVITY THAT MAY HARM ABORIGINAL CULTURAL HERITAGE:
The activity is a tier 1 activity; and
The area where the activity is carried out does not include any area that is part of a protected area; and
A due diligence assessment is undertaken in relation to the carrying out of the activity; and
The person takes all reasonable steps possible to avoid or minimise the risk of harm being caused to Aboriginal cultural heritage by the activity.
AUTHORITY TO CARRY OUT A TIER 2 ACTIVITY THAT MAY HARM ABORIGINAL CULTURAL HERITAGE:
The activity is a tier 2 activity; and
The area where the activity is carried out does not include any area that is part of a protected area; and
A due diligence assessment is undertaken in relation to the carrying out of the activity; and
The person carries out the activity in accordance with:
An ACH permit; or
An approved or authorised ACH management plan.
AUTHORITY TO CARRY OUT A TIER 3 ACTIVITY THAT MAY HARM ABORIGINAL CULTURAL HERITAGE:
The activity is a tier 3 activity; and
The area where the activity is carried out does not include any area that is part of a protected area; and
A due diligence assessment is undertaken in relation to the carrying out of the activity; and
The person carries out the activity in accordance with an approved or authorised ACH management plan.
EMERGENCY ACTIVITIES
EXEMPT
Activities are undertaken during an emergency response to prescribed hazards to prevent imminent danger to human life, health or livestock.
Any response to an emergency for urgent recovery activities and prevention of loss of life and livestock.
Access to water and fire suppression activities carried out during emergency response.
An activity is undertaken in an emergency situation for the purpose of preventing or minimising loss of life, prejudice to safety, or harm to the health of people.
Burning carried out for fire prevention or control purposes on Crown land; or by a public authority.
Clearing of a kind set out in the Environmental Protection Act 1986.
TIER 1
Hazard reduction in a non-emergency response situation.
Maintenance of existing firebreaks, fire access roads and tracks.
Recovery activity that is not an emergency but necessary to restore essential services.
Clearing of a kind set out in Environmental Protection (Clearing of Native Vegetation) Regulations 2004, regulation 5, item 2.
Compliance with a Local Government firebreak notice.
TIER 2
Nil identified.
TIER 3
Nil identified.
AGRICULTURE & NATURAL RESOURCE MANAGEMENT
EXEMPT
Nil identified.
TIER 1
Feral and pest fauna and weed control (handheld equipment)
Destocking
Installation of a temporary fencing
Vegetation control (mechanical slashing, mulching, spraying)
Pre-mop-up around trees (handheld equipment)
Reconnaissance and patrol in light vehicles, not to the extent that repetitive access and use create a permanent track.
TIER 2
Feral and pest fauna and weed control (non-handheld equipment)
Agricultural activities with handheld mechanical equipment include:
Delving and scraping existing areas
Construction of new stock watering points
Construction of animal yards
Ripping
Maintenance of existing stock watering points, within natural or enhanced natural water sources (bores, dams, windmills, troughs, piping, solar arrays, tanks)
Installation of field or stock fencing
Maintenance (handheld mechanical equipment)
Burning for conservation land management purposes
TIER 3
Establishing a new farm or pastoral station
Diversification of land use that is not like for like or less
Activities using mechanical equipment include:
Clearing of land
Construction of new watering point or water infrastructure
Delving or scraping in new areas
Contour cultivation
Terrace farming
Scarifying
Ripping
Installation of new yards
Establishing new forestry plantations
Conducting forestry activities in areas not currently subject to such
FIELD MAPPING, MONITORING, INVESTIGATIONS, SURVEYS
EXEMPT
Nil identified
TIER 1
Surveying, mapping, monitoring, measurement and investigations using handheld mechanical equipment or that utilises existing footings
Monitoring and sampling completed with aircraft including drones
Drilling and test pitching putting up to 50cms in-depth on and using existing roads or tracks
Marking out in accordance with the Mining Act 1978 and Mining Regulations 1981
Low-intensity exploration activities and geophysical surveying including:
Geological mapping
Gravity surveys
Fossicking
Sampling and coring with handheld equipment
Magnetic, radiometric and electromagnetic surveys
More
Stockpile sampling where samples are collected from above the natural ground level within a previously disturbed footprint
Soil and drainage sampling using handheld equipment
TIER 2
Surveying, mapping, monitoring, measurement and investigations requiring:
Digging of pits; or
Temporary burial or survey equipment
Installation of monitoring stations that do not require excavation for footings
Exploration activities with low ground disturbance activities including:
Magnetic borehole surveys
Seismic surveys
Induced polarised surveys
Air drilling
Sampling with the removal of material up to and including 20kg including:
Soil sampling
Rock chip sampling
Stream sediment sampling
Channel sampling
TIER 3
Installation of monitoring stations that require new footings including:
Weather and meteorological
Satellite dishes
Sea level monitors
Air quality sensors
Aquifer monitors
Environmental monitoring stations
Observatories
Clearing for drill pads and access tracks
All other drillings, including:
Rotary mud drilling
Diamond drilling
Percussion drilling
Costeaning
Seismic surveying requiring clearing of new tracks
Removing more than 20kg of materials
INFRASTRUCTURE AND LAND DEVELOPMENT
EXEMPT
Construction, renovation or demolition of a building occupied, or intended to be occupied as a place of residence, or a building ancillary to such a building, on a lot as defined in the Planning and Development Act 2005 that is less than 1100 metres squared.
Development of a prescribed type carried out in accordance with the Planning and Development Act 2005.
Burials of Aboriginal People that are approved under section 12 of the Cemeteries Act 1986.
Burials in accordance with section 11 of the Cemeteries Act 1986.
TIER 1
Installation of structures by hand or handheld augers to previously disturbed depth. including:
Signs
Solar panels
Bollards
Kerbing
Barriers
Laying temporary structures and devices on existing formations and or disturbed land.
TIER 2
Burials of non-Aboriginal people that are approved under section 12 of the Cemeteries Act 1986.
Installation of structures inclusive of signs, solar panels or barriers in a previously disturbed area, deeper than previously disturbed.
Installation of structures on undisturbed land, whether permanent or temporary, that do not require foundations.
TIER 3
Land development and associated infrastructure including:
Broadacre land clearing
Building Construction
Preparatory work for the development
Building carparks, recreational parks, sports grounds and associated amenities
Villages, village or town centres, commercial precincts
Building new or expanding transport infrastructure.
Installation of new services and associated infrastructure for:
Power generation and distribution
Water storage and treatment
Sewage and effluent
Telecommunications
Gas
Construction of industrial facilities and ancillary infrastructure.
Activities associated with the construction, extension or widening of:
Roads and roadway infrastructure
Laydown areas
Bridges
Tunnels
Walkways, cycleways, tracks
The building or expanding of waste and recycling facilities.
Establishing or expanding campgrounds.
Development or extension of a cemetery declared under the Cemeteries Act 1986, section 4 (1)
OTHER ACTIVITIES
EXEMPT
Travel on existing roads or tracks
Photographs for recreational purposes
Temporary camps are limited to:
Swags
Tents
Camper trailers
Caravans
General maintenance and lifestyle activities associated with a dwelling and/or conducted on completely modified landforms including:
Gardening
Fixing fences
Ariel transport that does not require clearing at the landing site.
Maintenance of existing infrastructure with no new or additional ground disturbance.
Undertaking a like-for-like activity or less.
TIER 1
Driving vehicles in a manner that does not result in new tracks (not on existing roads or tracks).
Drone usage.
Removal of surface asbestos-containing minerals.
Planting new vegetation (handheld equipment).
Removal of redundant plant and equipment within the existing disturbance area.
Extraction of basic raw materials for existing pits.
Scrape and detect activities (handheld equipment).
Mineral exploration (handheld equipment).
Metal detecting.
TIER 2
Organised tours and leisure activities not exclusively on existing tracks and roads that through repetition may result in new tracks including:
Four wheel driving
Mountain biking
Horse riding
Self-guided tours
Tourism
Removal of surface waste and litter requiring excavation.
Revegetation in disturbed areas (mechanical equipment).
Reopening underground workings.
Backfilling mining voids using imported material.
TIER 3
Blasting.
Clearing of land for tracks.
New bore construction.
Establishment of a new or expansion of an existing mine including:
Pit
Portal
Audits
Shafts
Processing plants
Dumps
Trailing dams
Stockpiles
Scrape and detect (non-handheld equipment)
Erosion control around infrastructure requiring excavation below surface level.
Remediation of areas bigger than 100 square metres and three metres in depth.
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.
